Volume 2 — California Unreported Cases

<p>School Lands—Application to Purchase.—Section 3495 of the Political Code, referring to applications for the purchase of school lands, is mandatory in requiring the applicant to state “that there is no occupation of such lands adverse to any he has”; or, in case there is such an occupant, in requiring the affidavit to show that the township has been sectionized three months, and that the adverse occupant has been in occupation more than sixty days.</p>

<p>Special Assessment.—A Judgment had Without Notice to the Owner of property affected by it, in an action for an assessment for the construction of a sewer, will not bind his interest, and a sale in pursuance of such judgment will not pass his title.</p> <p>Judgment—Service of Process.—If a Woman Whose Christian Name is Henrietta is sued under the initial H., and the sheriff returns the summons as served “by delivering to Harriet .... one of the defendants sued as H.....,” and it does not appear that Henrietta was served at all, judgment thereupon will not affect the latter or her property.</p>

<p>Railroads.—A Law Requiring Signals in Case of a Moving Train approaching a street crossing has no reference to the management of cars in the making up of freight trains and loading them between, crossings.</p>

<p>Carrier—Person Biding in Exposed Position.—If a law provides that in ease a passenger on a railway train suffers injury “on the platform of a ear or on any baggage, wood, gravel or freight ear, in violation of the printed regulations of the company posted up at the time in a conspicuous place inside of its passenger cars then in the train .... such company shall not be liable for the injury, provided said company at the time furnished room inside its passenger cars sufficient for the accommodation of its passengers,” it is immaterial that the law does not in express terms prohibit a recovery to a person so suffering an injury.</p> <p>Carrier—Person Biding on Other Than Passenger Car.—In the trial of an action against a railroad company for injuries received by the plaintiff while riding on one of the defendant’s ears, when in fact it was not a passenger ear, and a law relieved a company observing certain conditions from liability for injuries received on other than passenger cars, an instruction asked by the defendant on the hypothesis virtually of the plaintiff being debarred from recovery under this law is not too broad merely for failing to state just what description of car it was the plaintiff was riding on.</p>

<p>Marriage—Contract in the Presentí—The Findings of the Court below as ,to a contract of marriage in the present are not to be disturbed when made up on evidence substantially conflicting.</p>

<p>State Land—Contests.—The District Court has Mo Jurisdiction of a contest set on foot in the state land office by a party seeking to purchase lands of the state, as against another party to whom a patent for the lands has been issued by the state before the filing of his application by the contestant.</p>

<p>Taxation—Purchasers of Land from State.—The act providing for the management and sale of lands belonging to the state requires that holders of such lands by purchase from the state shall be proceeded against for delinquent taxes in the same manner as provided by law for the collection of state and county taxes, which latter proceedings are brought in the name of the people.</p> <p>Taxation—Several Parcels—Enforcement of Tax.—In a ease where, although there are several parcels of land of one owner severally assessed, there has been but one assessment and the cause of action is the failure to pay this, the assessment may be enforced in one action.</p> <p>Jurisdiction—Conclusiveness of Decision as to.—If an inferior court of limited jurisdiction has passed upon the necessary jurisdictional facts and decided them to- be sufficiently proved, the parties and their privies are estopped to litigate them again in a collateral action.</p> <p>Swamp Land Reclamation—Conclusiveness of Proceedings.— When it affirmatively appears that a board of supervisors in the course of proceedings resulting in an assessment found, in the manner required by law, that the statements in a petition for the organization of a reclamation district were true and that no land was improperly included in the district, such statements cannot again be litigated in a collateral action by one who was a party to the reclamation proceedings.</p>

<p>APPEAL from Tenth Judicial District, Colusa County.</p>

<p>APPEAL from Third Judicial District, Santa Clara County.</p>

<p>Public Lands—Issuance of Certificate of Purchase.—By neither state law, act of Congress, nor regulation of the land office is a “certificate of purchase” defined, nor is it prescribed by either in what cases, under what conditions or by what officer it shall issue; the method in this connection rests upon a custom that has become established.</p> <p>Public Lands.—-An Application to Purchase Public Land must be Piled with the register, and, if the aim is to purchase by private entry, the application must be in writing; to this that official appends his certificate that the tract is subject to such entry, and his specification of the price, after which it is by the applicant, when making payment, delivered to the receiver, who then gives duplicate receipts,</p> <p>one of which is returned to the register, who next transmits it to the commissioner of the general land office, after first issuing a certificate of purchase to the applicant; the other duplicate is retained by the applicant, to be surrendered on his receiving his patent thereafter.</p> <p>Public Lands—Application and Patent.—In Applications to Purchase public lands under the pre-emption laws, the declaratory statement must be filed with the register, but the proof must be made to the satisfaction of both him and the receiver, the latter then issuing duplicate receipts, one of which is retained by the applicant and the other delivered to the register, as in the case of a private entry. After this, however,, the proofs and the decision thereon of the two ofecials are, with the duplicate receipt held by the register, forwarded to the commissioner of the general land office, and he, on approving the decision mentioned, issues the patent to the applicant on surrender of the duplicate retainéd by him.</p> <p>Public Lands—Certificate of Purchase—Receiver’s Certificate.— In the case of land taken under the pre-emption laws the receiver’s duplicate must be held to be a “certificate of purchase, and is in all respects as satisfactory evidence that the proofs were sufficient, and that the applicant has purchased and paid for the land, as though it had been made by the register, and comes fully within the spirit of the statute declaring that certificates of purchase shall be- prima facie evidence of title.</p>

<p>APPEAL from Tenth Judicial District, Sutter County.</p>

<p>APPEAL from Seventeenth Judicial District, Los Angeles County.</p>

<p>Pleading.—A Cross-complaint is Unknown to the Code of Civil Procedure, and new matter found in the answer is denied by force of the statute.</p> <p>Pleading—New Matter Alleged in Answer—Proof.—It is incumbent on a defendant to prove at the trial the new matter set up in his answer, and in default of his doing so the allegations of new matter go for nothing.</p> <p>Deed.—A Description in a Conveyance is not Too Vague if it</p> <p>gives the contents of the land and its local situation and designates it as lot No. 62 on the official map of the outside lands of the town of Santa Barbara.</p> <p>Municipal Corporations.—Pueblo Lands Confirmed and Patented to a City by the United States, as successor to the pueblo, must be assumed to be held by the city in trust, and the power to alienate them must be conferred, if at all, by the legislature of .the state.</p> <p>Municipal Corporations—Sale of Vacant Lands.—The Original Ordinance of the city of Santa Barbara, of August 8, 1864, and the subsequent amendments thereto, limiting the authority of the president and board of trustees to the sale of vacant lands, did not extend) to lands continuously occupied.</p>

<p>APPEAL from Nineteenth Judicial District, San Francisco County.</p>

<p>APPEAL from Fifteenth Judicial District, San Francisco County.</p>

<p>APPEAL from Probate Court, Santa Clara County.</p>

This was an action of trover. E. E. Morgan’s Sons were San Francisco commission and shipping merchants engaged in chartering ships and receiving on board vessels controlled by them wheat and other goods for delivery at European ports, sales there to be for the account of and at the risk of the owners of the goods, the latter agreeing with these shipping merchants on the rates to be charged.

<p>Conversion—Measure of Damages.—The Amendment to Section 3336 of the Civil Code, whereby one suing with reasonable diligence for the wrongful conversion of personal property could no longer assess the detriment presumable as at the highest market value between the conversion and the verdict, was intended to be retrospective.</p> <p>Conversion—Measure of Damages.—The Amendment to Section 3330 of the Civil Code, whereby one suing with reasonable diligence for the wrongful conversion of personal property could no longer assess the detriment presumable as at the highest market value between the conversion and the verdict, does not impair the obligation of contracts within the inhibition of thg constitution of the United States.</p> <p>Conversion.—A Law Changing a Rule of Presumption as to the Measure of Detriment to be claimed in an action for wrongful conversion does not deprive a plaintiff of a vested right.</p> <p>Impairment of Contract.—A Law Directed at a Remedy Merely cannot be Said to impair the obligation of contracts, when the effect is not to take away all redress.</p>

Powell and Rogers were partners in the raising and sale of sheep. Powell sold to defendant Hoglan twelve hundred sheep for three thousand dollars. Hoglan paid fifteen hundred dollars cash and agreed to pay to Rogers the balance, provided that amount should be due Rogers from Powell upon a settlement of their copartnership accounts, or to pay any amount found due Rogers upon the settlement.

<p>APPEAL from Eleventh Judicial District, El Dorado County.</p>

<p>APPEAL from Fifteenth District Court, San Francisco County.</p>

<p>Verdict—Sufficiency as to Form,—Considered in the Light that a verdict must receive a reasonable interpretation and is to-be construed in reference to only the controversy before the jury, a verdict in ejectment is not necessarily bad for being in such words as “We find for the plaintiff according to the patent and assess the damages at five cents per acre per year.”</p>

<p>Grand Larceny—Theft of Horse—Value as Criterion.—Under section 487 of the Penal Code, larceny of a horse or mare is grand larceny, though the value of the animal is less than fifty dollars.1</p> <p>Embezzlement of Horse—Punishment—Section 514 of the Penal Code is not to be construed so as to make the embezzlement of a horse or mare punishable as less than grand larceny.</p>

<p>Libel—Allegation of Part as Libel—Introduction of Whole.— In a suit for libel, if the complaint contains solely and verbatim one part of the publication as the grievance, an offer in evidence of the whole is no variance although the other part is libelous also.</p> <p>Libel—Offer of Whole Publication When Part Only Complained of^-Objection.—Where in a suit for libel the plaintiff has set out in his complaint only one part of the publication, and at the trial offers in evidence the whole, whereby, in fact, other libels might appear, defendant should shape his objection as for the exclusion of the libels not so set out.</p>

<p>APPEAL from Tenth Judicial District, Colusa County.</p> <p>Defendant was convicted of murder, and a new trial having been denied him, he appealed.</p>

<p>Ejectment—Purchaser from Plaintiff Pending Action.—A person who, pending an action of ejectment, acquires the plaintiff’s title by purchase may, in a subsequent action in which the parties are reversed, rely upon the recovery in the first action together with averments connecting himself with the title of the plaintiff therein; and allegations of the issuing and serving of the writ of possession are immaterial.</p>

<p>Evidence—Letters of Outside Parties.—A letter from a vendor’s land agent to the vendee, written after the sale, is not evidence against an outside person in an action by him against the vendee’s assign.</p>

The plaintiff, E. E. McHenry, formerly the wife of Wm. Keithly, deceased, father of the defendants Frank, C. H. and Hattie Keithley, brought this action alleging that she had incurred a large indebtedness in the education and maintenance of the children; that the indebtedness was secured by a mortgage upon her life estate in certain lands constituting the es-state of Wm. Keithley, which mortgage was being foreclosed.

Action to foreclose a mortgage given to secure the payment of three promissory notes. Judgment was rendered dismissing the action as to the foreclosure, and retaining it only for the purpose of reforming the mortgage. Plaintiff appealed.

<p>Criminal Trial.—Where a Verdict Against the Defendant is Found Contrary to the Evidence and the court’s instructions, the supreme court will reverse the judgment and remand the cause for a new trial.1</p>

<p>APPEAL from Sixteenth Judicial District, Mono County.</p> <p>The facts in this case are similar to those in People v. Ship-pee, 53 Cal. 675.</p>

<p>Original application, to be admitted to bail.</p>

<p>Pleading—Failure to Amend After Demurrer Sustained.—Judgment is properly rendered against the plaintiff who has failed to amend his complaint after a demurrer to it has been sustained.</p> <p>Judgments—Effect of Satisfaction by Order of Court.—A judgment satisfied of record by order of court is no longer an actionable claim against the person named therein as the judgment debtor.</p>

<p>APPEAL from Fourth Judicial District, San Francisco County.</p>

<p>APPEAL from Fifteenth District Court, San Francisco.</p>

<p>Constitutional Law—Impairing Obligation—Change of Remedy. If the legislature changes the remedy in respect of a contract, it does not thereby necessarily impair the obligation.</p> <p>Repeal of Statute—Whether Revives Barred Claim.—A claim once barred through neglect by its owner to observe a requirement of a law then in force is not revived by the repeal subsequently of that feature of the law.</p> <p>Administration—Presentation of Mortgage Claim.—The law in force in 1872 required a mortgage claim, like other claims, to be presented to the administrator for allowance. In 1873 the requirement was done away with, in'1874 it was restored, and in 1876 it was done away with finally.</p>

<p>Larceny.—The Crime of Larceny is Complete When the felonious taking or asportation is consummated.1</p> <p>Larceny—Venue—County into Which Goods are Taken.—Section 786 of the Penal Code, authorizing a trial in the county into which the property has been brought, contemplates property “taken by larceny” in another county and a completed offense in that other county.</p> <p>Larceny—Venue—County into Which Goods are Taken.—A fresh larceny cannot be imputed to the thief in every county into which he leads or carries the stolen property, as the effect of the law authorizing his being tried in a county into which he has brought such property.</p> <p>Larceny—Accessory After the Fact.—One Who has not Aided in the theft but, with knowledge of it, accompanies the thief and aids in the care and management of the stolen property, is an acees-r sory after the fact, and should be tried as such and not as a principal.</p>

<p>APPEAL from Superior Court, Los Angeles County.</p>

<p>APPEAL from Twelfth Judicial District, San Mateo County.</p>

<p>Stipulation to Abide Result of Appeal in Another Action.—A stipulation duly entered into by a plaintiff and a defendant as to the issues in their action, to abide by the decision on similar issues in another action, is to be enforced by the supreme court on appeal.</p>

<p>APPEAL from Twentieth Judicial District, Santa Cruz, County.</p>

<p>APPEAL from Tenth Judicial District, Colusa County.</p>

<p>APPEAL from Twentieth Judicial District, Santa Cruz County.</p>

<p>Counties—The Line Dividing the Counties of Sonoma and Napa, as fixed by a survey approved by the surveyor general under authority of section 3972' of the Political Code, is conclusive.</p> <p>Constitutional Law—Surveyor General—Judicial Functions.— Section 3972 of the Political Code, making the validity of surveys depend upon the approval of the surveyor general, did not confer judicial functions upon that officer.</p>

Action to have defendants declared to hold the legal title of certain portions of the outside lands of San Francisco as trustees for plaintiff. The defendants appear to have proceeded regularly under the outside land ordinance of the city and county of San Francisco, and after making their proofs acquired their deeds from the city and county to the property in controversy.

<p>APPEAL from Twelfth Judicial District, City and County of San Francisco.</p>

Defendant was charged by information with having published a libel upon Alice M. Cullman by writing a false and defamatory letter concerning her, and causing it to be placed in an open place on her premises. The defamatory matter was an attempt to connect her with one Chona Somora, a notorious character of Salinas city, who had been convicted of maintaining a public nuisance.

<p>APPEAL from Superior Court, Monterey County.</p>

<p>APPEAL from Superior Court, City and County of San Francisco.</p>

<p>Street Assessment—Sufficiency of Description.—Where the board of supervisors declare their intention that sidewalks on a street be reconstructed, and one lot with a frontage of eighty-six feet is charged in the assessment for new sidewalks with only thirty-nine feet, there being nothing in the assessment or diagram indicating which particular thirty-nine feet is made subject to assessment or that such thirty-nine feet are separately assessed, the description is insufficient.1</p> <p>Street Assessment—Charging Lots Separately.—The superintendent of streets has no power to charge each separate lot with the work done in front of it; if sidewalks between certain termini are ordered reconstructed, all the lots fronting on the street are to be treated as benefited in the proportion that each bears to the whole frontage.</p> <p>Street Assessments—Separate Charges for Old and New Sidewalks.—The superintendent of streets has no power to make separate assessments on lots for old and new sidewalks, but the assessment must be to each lot for a share of the whole expense of reconstruction in the proportion its frontage bears to the whole.</p> <p>Street Assessment—Necessity of Appeal to Supervisors.—A property owner is not bound to appeal to the 'board of supervisors to have a void assessment annulled.</p>

<p>A Street Assessment Lien cannot be Enforced Against Less Than All of the property owners liable therefor.1</p>

<p>Criminal Law—Verdict Uncertain.—When a prosecution is against more than one person, a verdict finding “the defendant guilty,” etc., is void for uncertainty.</p>

<p>Remittitur—Laches in Applying for Withdrawal.—An application made ten years after the issue of a remittitur for a withdrawal of such remittitur is to be denied, unless made upon good cause shown.</p>

<p>Foulds for petitioner; Johnson for defendant.</p>

<p>APPEAL from Superior Court, Alameda County.</p>

<p>Elections—Chief of Police of San Francisco.—As a condition precedent to the issuance of a certificate of election to a chief of police of San Francisco, it is required that the board of election commissioners declare that such election has been had.</p>

<p>Attorneys—Misconduct.—Proceedings to Remove an Attorney for professional misconduct are to be dismissed upon the filing of satisfactory affidavits in disproof and motion to dismiss made by the attorney accusing.</p>

<p>Corporations—Liability of Stockholder—Constitution of 1849. The constitution of 1849 needed the aid of the act of 1850 (section 32) and the act of 1853 (section 16) in order to subject each member of a corporation to thé paying of the debts of the company.</p> <p>Corporations—Liability of Stockholder—Constitution of 1882. Section 3 of article 12 of the present constitution (1882), that provides for subjecting each member of a corporation to the paying of the company’s debts, is self-executing and needs no legislation to give it practical effect; and is, like all other provisions of the instrument, mandatory.</p> <p>Corporation—Charter, Subjection to Future Legislation.—A corporation organized “under general laws” as provided in a then prevailing constitution, which provided in the same connection that “all general laws pursuant to this instrument may be altered from time to time or repealed,” is subject to appropriate enactments thereafter both constitutional and legislative.</p> <p>Constitutional Law—Obligation of Contracts—Change of Remedy.—A legislative act giving creditors recourse to law, whereas their sole recourse theretofore was to equity, in proceeding against a stockholder, does not impair the obligation of contracts.</p>

<p>Superior Court’s Jurisdiction—Breach of Confidence.—The constitution clothes the superior courts with jurisdiction of all cases where breach of confidence is shown.</p> <p>Fraud.—In a Suit by a Cestui Que Trust Against a Trustee, a complaint that sets out fraud and asks accordingly for a restoration of property as the relief states facts sufficient to constitute a cause of action.</p> <p>Estates of Decedents.—A Conveyance Fraudulently Obtained, in deference to which the probate court has distributed the grantor’s share of the estate to- the grantee, does not estop the grantor, proceeding without undue delay, to sue for a restoration, setting out the fraud in his complaint.</p> <p>Fraud—Laches—Limitation of Actions.—There is no stale claim disclosed and the statute of limitations is no bar, if a plaintiff, in an action for relief from a fraud practiced upon her, discovered the fraud only within two months of bringing suit.</p> <p>Fraud—Laches—Discovery by Counsel.—In a complaint setting out fraud and objected to as revealing delay in bringing the action, it is sufficient to refer to investigation by counsel as the means whereby the fraud was unearthed, when the plaintiff is unused to business, ignorant, and unacquainted with the language.</p>

<p>APPEAL from Seventh District Court, Solano County.</p>

<p>Appeal—Judgment in Foreclosure—Defaulting Defendants— Presumption of Correctness.—On appeal from a judgment of foreclosure after all the defendants had made default, where the ease is presented on the judgment-roll simply, and the point urged is the excessive amount of the judgment, it must be presumed that the trial court, having had the evidence before it, was correct in its findings, until error is shown in the manner provided by law.</p>

<p>Contract to Furnish. Girders of “Best Quality”—Construction.^A contract for the manufacture and delivery of “girders" of the best quality of pig iron, “to be put in place within forty-six days,” must, considering the time limit, be held to mean the best quality to be found in the state, rather than in all the' world.</p> <p>Appeal—Order for New Trial.—When the Trial Court Determines it has erred in its findings and orders a new trial accordingly, the order is not to- be disturbed if the error was the finding of a material fact without sufficient evidence, or contrary to evidence, or on a conflict of evidence.</p>

<p>APPEAL from Superior Court, San Francisco.</p>

<p>Default.—An Affidavit of Service of Summons by a person other than the sheriff should state that such person was over the age of eighteen years at the time of the service, else a judgment rendered thereon by default will be reversed on appeal.1</p>

<p>New Trial—Setting Aside Order for by Trial Court.—If a motion for a new trial is realized as having been granted inadvertently or prematurely the trial court may set aside its order, but not otherwise.</p> <p>New Trial.—The Eight of Appeal from an Order Granting a new trial may not be kept alive by the court’s vacating its order, once duly made, and thereafter virtually reinstating it.</p>

<p>APPEAL from Superior Court, Santa Barbara County.</p>

<p>Administrators—Decree of Settlement—Setting Aside—Appeal The action of the superior court in declaring void a decree of settlement of account, distribution and discharge, and in setting aside the decree, is not subject to appeal but writ of review.</p> <p>Administrators—Final Account—Notice.—If an executor gives notice of the filing of his final account and of a day fixed for its settlement, this would mean filed for final settlement, and would mislead nobody; so, too, a notice given that with such final account a petition for distribution is filed; this would mean for final distribution.</p>

<p>APPEAL from Superior Court, San Francisco.</p>

<p>Street Law—Contract for Macadamizing—Premature.—The power of a board of supervisors to award a contract for macadamizing is largely controlled by local conditions at the time; it follows that such a contract cannot be awarded before completion of the grading.</p> <p>Street Law—Macadamizing—Eights of Owners to Do the Work. The power of a board of supervisors to award a contract for macadamizing can be exercised only in such a manner as may not deprive the property owners of their statutory right to do the work themselves, the enjoyment of which right would be impossible if such award should be made before completion of the grading.</p>

<p>APPEAL from Superior Court, Butte County.</p>

<p>Judgment by Default—Setting Aside—Discretion.—An order setting aside a judgment by default will not be disturbed on appeal, unless there is a showing made of an abuse of discretion.</p>

<p>APPEAL from Superior Court, San Francisco.</p>

<p>Bill of Exceptions—Delay in Presentation for Settlement.— A court may settle a bill of exceptions notwithstanding delay in presenting it for the purpose, when the delay has been the result of arrangement by the opposing attorneys from motives of accommodation.</p>

<p>APPEAL from Superior Court, San Francisco.</p>

<p>Larceny.—Where the Contention of the Prosecuting Witness was that a transfer of money by him to defendant was intended to be a deposit, while that of the defendant was that it was intended to be a loan, the defendant was entitled to have the court instruct the jury to the effect that they should acquit him if they believed the understanding of both parties at the time of the transaction was that he was to use the money in his business.</p>

<p>Street Law—Conflict Between Petition and Diagram.—In a proceeding in relation to a street improvement the fact that in some instances names, other than those of the parties named in the petition, who therein avow themselves to he owners of the lots platted on the diagram accompanying the petition, appear marked as owners of the lots on the diagram itself, should not disprove allegations of the petition as to ownership.</p>

<p>Mortgage Foreclosure—Determination of Ownership.—In an action to foreclose a mortgage the record owner of the mortgaged property cannot complain if, after he by his answer has virtually invited the true owner to contest his title, the court determines the ownership.</p>

<p>Trial—Failure of Proof—Judgment for Defendant.—Wien the Substantive Fact upon which depends the cause of action, as stated in the complaint, is found against the plaintiff on sufficient evidence, the defendant should have judgment.</p>

<p>Appeal—Frivolous and for Delay Only—Damages as Penalty.— An appeal from a judgment in an action on a bond, given to release an attachment, where a demurrer to the complaint, which complaint alleged each step in the former action, the judgment, refusal of the defendant to pay same, and that it was still unpaid, and prayed accordingly, was overruled, and, upon an answer being then filed pre-</p> <p>seating as the sole issue the recovery of the judgment, the court found for the plaintiff, is so plainly without merit that it must have been taken for delay only, wherefore the supreme court, while confirming the judgment appealed from, adds twenty per cent damages.</p>

<p>APPEAL from Superior Court, San Francisco.</p>

<p>APPEAL from Superior Court, San Francisco.</p>

<p>Trial—Conflicting Evidence—Jury to Judge Credibility.—On a question solely of fact in a case where the testimony is conflicting the jury is to be allowed to choose whom it will believe.</p> <p>Sole Traders—Declaration—Publication of.—The act of April 12, 1872, did not make it essential to publish the declaration to carry on businees as a sole trader.</p>

<p>Prohibition.—A Writ of Prohibition Does not Lie in a ease open to appeal.</p> <p>Appeal.—Where, in a Foreclosure Case, the Court Orders the Sale of exempt property, the error, if any, is to be corrected by appeal.</p>

<p>APPEAL from Superior Court, San Francisco.</p>

<p>APPEAL from Superior Court, San Francisco.</p>

<p>APPEAL from Superior Court, San Francisco.</p>

<p>Mortgage Foreclosure—Appeal.—The Undertaking in Regard to a Deficiency, where the judgment appealed from is for the sale of mortgaged premises, is required only in the ease of an appellant in possession of the premises adjudged to be sold.</p>

<p>APPEAL from Superior Court, San Francisco.</p>

<p>APPEAL from Superior Court, San Francisco.</p>

<p>Foreclosure of Mortgage.—A Judgment in a Foreclosure Suit Does not Fail for not directing the docketing of judgment for a deficiency.</p> <p>Foreclosure of Mortgage.—A Judgment in a Foreclosure Suit Does not Fail for not adjudging expressly the defendant’s personal liability to' the plaintiff, if such an adjudging is to be inferred from it.</p>

<p>Hew Trial.—All Presumptions are in Favor of an Order granting a new trial.</p> <p>Hew Trial.—A Certain Finding by the Court that there was consideration for the note sued upon is no argument against a new trial ordered by the court after one resulting in plaintiff’s favor, when the record discloses that the finding on the question of consideration was not sustained by the evidence.</p> <p>Bills and Hotes—Parol Evidence to Explain.—If a note has been given with the understanding that it is to be used in a particular way or with a particular qualification, parol evidence is admissible in an action between the original parties to prove the understanding.</p> <p>Equity—Interposition to Prevent Fraudulent Use of Instrument.—A court of equity will interfere to prevent the fraudulent use of a paper for a purpose not contemplated by the parties at the time it was executed.</p>

<p>APPEAL from Superior Court, San Francisco.</p>

<p>APPEAL from Superior Court, San Francisco.</p>

<p>APPEAL from Superior Court, San Francisco.</p>

<p>•Street Law.—The Grade of Vallejo Street, in the city of San Francisco, between Montgomery and Kearny streets has been legally established.</p>

<p>Carrier—Injury to Passenger—Trial—Conflicting Instructions.— An instruction in effect that, it being admitted that defendant was a common carrier and that plaintiff on a day named was a passenger riding in defendant’s coach, and while so riding was upset and was injured thereby, plaintiff had made out a prima facie ease, unless defendant proved the upsetting to have been the result of inevitable casualty, was not in conflict with another, in substance, “if you believe from the evidence in this ease (that is, on both sides) that the upsetting was not occasioned by the negligence and carelessness of the defendant but by an act of God you should find for defendant.”</p>

<p>APPEAL from Superior Court, Merced County.</p>

<p>Bills and Notes—Note Payable After Named Event—Maturity. A note expressly made payable after the maker should be released from an attachment then in force is not, before that event, subject to a demand for payment.</p> <p>Assignment—Obligor Treating With Assignee,—The obligor of a claim which apparently has been assigned is justified in treating with the assignee, if without knowledge or notice that the assignee is not the bona fide owner of it.</p> <p>Fraudulent Assignment.—The Release from a Past Indebtedness due from the fraudulent assignee of a claim, who assumes to transfer the latter, is not a sufficient consideration as' against the just owner, so as to insure rights in the transferee.</p> <p>Fraudulent Assignment—Notice to Holder.—One who purchases a claim from an assignee with notice of mala fides in the assignment cannot withhold the claim from the assignor.</p>

<p>Appeals—Overruling Demurrer at Bequest of Appellant.—A party whose demurrer has been overruled at his own request will not be heard, on appeal from the judgment entered in the ease, to question the correctness of the ruling.</p> <p>Trial—Findings.—After a Finding “That the Plaintiff was the owner in possession of the property on the day that the defendant seized upon it and removed it from her possession, custody and control,” it is not necessary for the court to make a further finding, so as to dispose of any issue raised by the answer as to ownership of the property by some third person.1</p>

<p>APPEAL from Superior Court, Los Angeles County.</p>

<p>Mortgage Foreclosure.—In Ejectment "by a Mortgagee to recover the premises after due foreclosure proceedings, the mortgagor cannot defend his withholding possession on the ground of equities now set up for the first time.</p>

<p>Dedication.—When More Than Six Years have Run from the beginning of a public user of land up to the bringing of suit by the owner, the court is justified in inferring a dedication on the day such user began.</p> <p>Dedication—Revocability.—Neither the Owner' of Land nor Anyone claiming under him can recall a dedication once made and accepted, so long as the land remains in the use to which it was dedicated, although, subject to the user, the owner has the fee notwithstanding the dedication.</p>

<p>Mechanics’ Liens.—The Constitution of 1879 (Art. 20, Sec. 15), as to mechanics’ liens, was intended to be merely declaratory of the law in that regard theretofore in force as construed by decisions of the supreme court then extant.</p> <p>Mechanics’ Liens—Constitution of 1879.—The mechanics’ lien law in force at the time of the enactment of the constitution of 1879, as construed by decisions of the supreme court extant at the time, gave no warrant to laborers and materialmen to charge the building with lienb exceeding in amount the balance of the contract price remaining unpaid when the notice, of lien was given.1</p> <p>Mechanics’ Liens—Constitutional Law.—The legislature, in amending section 1183, Code of Civil Procedure, as to mechanics’ liens in assumed compliance with the mandate of the constitution of 1879, could not validly extend the law beyond what the constitution intended.</p>

<p>APPEAL from Superior Court, Sutter County.</p>

<p>APPEAL from Superior Court, San Francisco.</p>

<p>Appeal—Indefinite Transcript—Charge to Jury.—An appeal from points in a charge to a jury is not to be entertained upon a transcript containing no copy of the charge, but showing only that one had been given, an oral one, and having in it nothing to show any exceptions taken.</p>

<p>Appeal.—An Appeal on Points Disposed of in a Previous Appeal of the same ease will not be entertained.</p> <p>Homicide.—A Verdict of “Guilty of Murder in the First Degree as charged” is valid.</p> <p>Indictment.—Prosecution upon Information, Instead of upon Indictment, does not violate the constitution of the United States.</p>

<p>APPEAL from Superior Court, Butte County.</p>

<p>Larceny—Evidence of Similar Transactions.—In a prosecution for larceny where, under the case as made out, the prosecuting witness had transferred money to the defendant, it was error to admit evidence of transactions of a similar nature had by the defendant with other persons, which might tend to show this to be a familiar dishonest method with him but could not show that the understanding of the parties in this particular transaction was not that the property should pass as well as the possession.1</p> <p>larceny—Instructions—Hypothetical Case.—In a prosecution for larceny it is error to give an instruction based on a hypothesis which assumes facts, so far as they go, like those proved at the trial, particularly when an instruction preceding contained such words as “this whole ease turns upon the intent to steal at the time the money was paid.”</p>

<p>APPEAL from Superior Court, Los Angeles County.</p>

<p>Exceptions.—Any Error of the Court as Found in the Charge to the jury as taken down by the court reporter is available on appeal without being excepted to or embodied' in a bill of exceptions.</p> <p>Criminal Law.—A Verdict of “Guilty as Charged,” etc., is sufficient.</p>

<p>APPEAL from Superior Court, Fresno County.</p>

<p>Habeas Corpus.—The Passing of Sentence Within Two Days after conviction does not entitle the convicted person to discharge on habeas corpus.</p> <p>Criminal Law.—The Imposing of Sentence Within Two Days After judgment of conviction is an irregularity and contrary to section 1191 of the Penal Code, but the question should be raised by direct appeal from the court’s action, rather than by habeas corpus.</p>

<p>Pleading—Verifications—Execution of Assignments.—Section 447 of the Code of Civil Procedure, in relation to pleadings, does not make invalid an unverified answer denying the genuineness and due execution of an assignment, but rather of an instrument that may be assigned.</p> <p>Pleading—Verification—Execution of Assignment.—Under section 447 of the Code of Civil Procedure it is not essential that a defendant swear to his denial of the genuineness and due execution of the assignment of an instrument, when the complaint contains no copy of the instrument and the assignment.</p> <p>Pleading.—A Denial on Information and Belief is not Good when the reference is to matters of which the defendant must have knowledge, but the court cannot assume a knowledge on the part of the defendant that at the time of the institution of the action the plaintiff was owner of the instrument sued upon.1</p>

<p>Sale—Change of Possession.—In Case of Conflicting Evidence as to Change of Possession the Findings of the trial court will not he inquired into on appeal if there was sufficient evidence to support them.</p>

<p>APPEAL from Superior Court, Tehama County.</p>

<p>Pleading—Demurrer Sustained—Refusal to Amend.—A dismissal of the cross-complaint rightly follows a defendant standing on his answer and declining to amend after a demurrer to the latter has been sustained.</p>

<p>Appeal—Failure to File Briefs—Abandonment.—An appeal will be considered abandoned when the appellant fails to file his points prior to the day set for argument, as required by the rule, or to file a brief within the time allowed by the court.</p>

<p>Arson.—Instructions in Prosecution for arson held sufficient.</p>

<p>Suretyship—Liability on. Second Bond.—In an Injunction Suit an undertaking was given for a temporary restraining order, valid to a certain date. On that date another undertaking was filed for a continuance of the injunction, with different sureties. Held, on a suit against the second sureties, that under the recitals the second undertaking was not given in place of the first one, and that the sureties sued were not liable for the damages caused during the time covered by the first undertaking.</p>

<p>Fraud.—A Deed Untainted by Fraud is not Impeachable for Fraud committed afterward in the obtaining of another deed between the same parties for different premises.</p> <p>New Trial—Discretion—Change in Incumbency of Bench.—A motion for a new trial on the ground of insufficiency of evidence is addressed to the discretion of the court, and will not be reversed unless a manifest abuse of discretion is shown. The fact that there was a change in the incumbency of the bench between the trial and the determination of the motion for a new trial does not change the rule,</p>

<p>Taxes—Action to Becover.—District Attorneys are not Authorized to Commence and prosecute actions for the recovery of delinquent taxes. Any county may do so in its own name, and its action is to be directed by the board of supervisors of such county. The district attorney having brought this action without their direction or ratification, no attorney’s fees can be recovered of the defendant, nor costs against the plaintiff.</p>

<p>Finding.—The Evidence Herein Sustains the Finding objected to, and substantially responds to the issue.</p>

<p>Appeal.—Where the Evidence is Conflicting, the Finding of the trial court thereon will not be disturbed.</p>

<p>Appeal—Failure to File Transcript.—Appeal Dismissed for want of transcript being filed.</p>

<p>Replevin—Judgment.—Where, in an Action for the Recovery of Personal Property, the property is not delivered to the plaintiff, he is entitled, if he recover, to a judgment for the property or its value, the value being the value as of the day of trial.</p>

<p>New Trial.—Where a Cause has Been Referred to a Referee, Who Returns His Decision and judgment to the court, the date of their filing is to legal intent the date of their rendering, and they have not until then a legal existence upon which a motion for a new trial might be based. Stipulated statements, notices, or other proceedings, had before the date of such filing, are wholly insufficient as a basis of a motion for a new trial.*</p>

<p>Eminent Domain.—The Averments Herein Show Sufficiently That the Defendant was properly named, and was not the known owner and claimant of the land sought to be condemned. A demurrer, therefore, on the ground that these facts did not appear, as required, was properly overruled.1,</p> <p>Eminent Domain.—The Compensation for Land Taken Under Condemnation proceedings is the value of it at the time of trial, and not at the date of the summons, as prescribed in section 1249, Code of Civil Procedure.</p>

<p>APPEAL from the Superior Court of San Bernardino County.</p>

The petitioner, Charles TI. Bailey, was arrested, as a fugitive from justice, on a warrant issued by the governor of California upon demand of the governor of Oregon. Application was made for a writ of habeas corpus, petitioner

<p>Injunction—Dissolution—-Beview on Appeal.—Where there is nothing in the record to show upon what the court acted in dissolving an injunction, the presumption is that it was dissolved upon good cause shown. Moreover, the retention or dissolution of. an injunction is within the sound discretion of the court, with which this court will not interfere unless the record shows abuse of discretion.</p>

This was an action brought by plaintiff, a creditor of one Love, to compel defendants, also creditors of said Love, to sign a memorandum of an agreement entered into between said Love and all his creditors, whereby he was to make an assignment for their benefit; and also to restrain defendants from further pursuing proceedings for the recovery of their indebtedness by attachment against said debtor’s property.

<p>Insolvency—Notice—Appointment of Assignee.—In a case of involuntary insolvency there is no provision for serving any notice on the creditors who are the moving parties in the proceeding, and jurisdiction to appoint the assignee is acquired by the service upon the debtor of the creditors’ petition and order of the court.</p>

<p>Findings.—The Trial Court must Find upon All the Material Issues raised by the pleadings, and when this rule is not observed the judgment will be reversed.</p>

This action was brought to recover of defendants, doing business of sheep-raising, as partners, under the name of G. A. Collins & Co., a balance on an account of goods sold and delivered. There was evidence that a portion of the goods had been purchased by Collins in his individual capacity and charged to the firm account. The court found the fact of the partnership and of the sale of the goods to the firm, and thereon rendered judgment against defendants.

<p>APPEAL from the Superior Court of Tulare County.</p>

This was an action for damages and for an injunction to restrain defendant from diverting the flow of water in a creek from ditches running over plaintiff’s land—plaintiff alleging to be owner of such water right by prescription. Defendant denied plaintiff’s title to such water right. The court found plaintiff to be the owner of such water right, and entitled to the injunction prayed for. Defendant appealed.

<p>'Attachment—Variance.—In a Suit on an Undertaking Given to Prevent a levy, where the complaint states that it was given to release a levy, the variation is not material.</p>

<p>Waters.—Any Rights Which a Riparian Proprietor Would Have to the Water of the creek which touched his land, if his settlement was after the act of 1866 took effect, would be subject to the previously confirmed appropriation of the water.</p> <p>Waters.—In the Absence of Any Findings as to the Order in Which the Persons interested in the appropriations of the water should use it, no decree can be entered in favor of the plaintiff which would not prejudice- the other owners. The cause must be remanded, with directions that all claimants of the water rights be made parties.</p>

<p>Costs.—Where the Action Involves the Title of the Land described in the pleadings, and the court decides that the plaintiff! has no cause of action against the defendant, the defendant is entitled to his costs and disbursements in the action.</p>

<p>Animals.—A Land Owner Being Injured by the Trespass of sheep in possession and care of defendant, the latter, under the evidence herein, is liable therefor. Testimony showing that by reason of the injury the plaintiff’s stock had to be fed with hay goes only toward showing the extent of the injury, and is properly admitted.</p>

<p>Appeal—Judgment-roll.—The Petition and Bond for Removal, and Order Thereon, are not a part of the judgment-roll, and the bond not being signed by the principal, it is insufficient. The judgment must therefore be affirmed.1</p>

<p>Ejectment.—The Legal Title Being Opposed Only by a Mere Naked Possession, the holder of such title is entitled to the possession.</p>

<p>An Appeal will be Dismissed When Previous Appeal from same judgment has been perfected.</p>

<p>Dedication of Street.—The Finding That the Defendants Neither have nor had Any Title to the land is sustained by the evidence, and, this being so, it is immaterial to them who the owners were who dedicated it for a street, and they cannot object that there is no finding by the court as to who such owners were.</p>

<p>Life Insurance—Assignment—Suit for Reassignment.—Where a plaintiff, while owner of a policy of life insurance, has assigned the the same to the defendant, to secure advances made such defendant, and afterward sues for a reassignment of the policy in order to collect it from the insurance company, the court should not adjudge the plaintiff the owner of the policy and entitled to receive the whole amount from the company, for the interest of the plaintiff is only what remains after the advances have been satisfied. The defendant has the legal title, and cannot be made to surrender it until his advances have been paid.</p>

<p>Trial.—The Findings of a Jury on Special Issues are Merely Advisory to the court, and, if adopted, are the findings of the court. If a general verdict be rendered by the jury, the court can set it aside and find the facts and render judgment on the testimony taken, and in ease of a general verdict must, notwithstanding the verdict, find the facts.</p> <p>Equity—Verdict of Jury Advisory Merely.—In eases at law the verdict of a jury is final, unless set aside; but in equity it is merely advisory, and may be adopted or not, as the court sees proper.</p> <p>Equity—Sufficiency of Evidence.—Where in an Equity Case, if Tried Alone by the Court, the evidence would be required to be clear and convincing, the same rule must apply to the jury as to evidence submitted to them in the same case. A mere preponderance of testimony will not be sufficient.</p> <p>Equity.—There is No Error in Regard to the Admission of the Evidence herein; and it does not appear that the judge assumed that he was conclusively bound by the verdict of the jury, though he arrived at the same conclusion.</p>

<p>Mortgage.—The Evidence Supports the Finding That the Mortgage herein is not affected by the heretofore unknown rights of the interveners.</p>

<p>Animals.—The Owner of Cattle and Horses is Responsible for the Willful Entry therewith upon lands belonging to another and in Ms possession.</p> <p>Animals—Trespass—Lien.—The Rule as to- Notice to the Owner, where a lien is asserted upon such cattle, etc., does not apply to this ease.</p>

<p>Habeas corpus.</p>

<p>Appeal—Dismissal for Want of Notice.—When the original transcript does not show that the notice of appeal was served on plaintiff’s attorney of record, and a motion to dismiss on that ground is made, such motion may be overruled if the defendant,- upon leave, files a certificate of the clerk of the court below showing that proof of service of such notice is on file in the clerk’s office.</p>

The defendant in this • case was accused of the crime of grand larceny. Defendant pleaded not guilty. He admitted the taking of money from the pocket of one Carmody, but denied any intent to steal the same. Evidence as to this intent was introduced on both sides. The court ruled that the question of intent was one for the jury, and instructed them if they found a felonious intent, to render a verdict of guilty.

<p>APPEAL from the Superior Court of San Mateo County.</p>

<p>Municipal Corporations.—The Office of “Supervisor, First Board,” does not exist in the city and county of San Francisco.1</p>

The defendant in this action was indicted and convicted of manslaughter. The defendant then moved for a new trial, on the ground of newly discovered evidence, asking time and process to produce new witnesses, etc. • This the court denied. Defendant appealed.

<p>Appeal.—Where the Question is One of Mere Preponderance of Evidence, the judgment of the lower court will not be disturbed.</p>

<p>Pleading.—To Constitute a Cause of Action, It is Sufficient to Allege the Facts Simply, without setting out matter tending to prove them.</p> <p>Pleading—Demurrer.—If Plaintiffs Have a Clear Legal Eight in the subject matter of an action, and that right is being materially injured by wrongful acts complained of, the sufficiency of such a cause of action cannot be attacked by general demurrer for imperfect averment. Such errors can only be reached by a special demurrer.1</p> <p>Waters—Enjoining Diversion.—Where One of Two or More Co-owners, in the use of water of a stream appropriated by them for beneficial purposes, diverts for use a greater quantity of water than of right belongs to him, so as to materially diminish the quantity to which the others are entitled, such parties are entitled to enjoin the wrongdoer from diverting the water to their injury.</p> <p>Waters—Judgment-roll in Former Action.—Where, in an Action to determine water rights, the right of property is put in issue, the judgment-roll in a former action is admissible to prove the interest in such property of the parties bound by such judgment.</p>

Proceeding for disbarment of an attorney. The defendant, an attorney and counselor entitled to practice in all the courts of the state, was accused of being a person of immoral character and bad repute, and, as such, not entitled to practice; and further, that he was of such character at the time of his admission to practice, and that he obtained his license to practice by fraudulent concealment of such facts.

<p>APPEAL from the Superior Court of Alameda County.</p>

<p>APPEAL from the Superior Court of the City and County of San Francisco.</p>

<p>APPEAL from the Superior Court of Fresno County.</p>

This was an action by plaintiff to be declared owner of certain lands, and that one of the defendants, L. W. Walker, be declared to hold the same in trust for him, and that de- fendants be compelled to execute a deed to him. Prior to the commencement of this action a suit in partition was pending between owners of undivided interests in the Rancho Laguna de San Antonio.

This was a proceeding against the defendant for usurpation of the office of “police justice of the city of San Jose.” The defendant answered that there was no such office existing, •and that the… Held: and which included the powers of a police judge; and the trial court so found. Plaintiff appealed.

This was a proceeding for the settlement of the account of the executor of this estate. Objections were filed to said account, and thereafter the court duly settled such account. From such settlement, and the orders and findings thereon, the executor appeals.

<p>Criminal Law—Evidence.—The Conduct, Acts and Statements of a person under arrest for a crime which he is charged with having committed are admissible in evidence, and such inference may be drawn from them as are warranted by the evidence; but an inference of guilt cannot be drawn from a statement evincive of innocence, nor from silence, where a person is not bound to speak, nor from refusal to answer unauthorized questions touching the charge against him.1</p> <p>Larceny—Possession of Stolen Goods.—When a Man in Whose Possession stolen property is found gives an account of how he came by it, as by telling the name of the person from whom he received it, it is incumbent on the prosecution to show that the account is false, unless the account given be unreasonable or improbable on the face of it.</p> <p>Larceny—Possession of Stolen Goods.—While It Would be Proper, in a case in which there is any evidence tending to prove inculpatory facts and circumstances in connection with the possession of property recently stolen, for a court to instruct the jury that they will be justified in finding the defendant guilty of the theft, it would be improper and erroneous to give such instructions if there were no evidence in the case to warrant the inference of such circumstances.</p>

<p>Application for writ of certiorari.</p>

<p>Promissory Note—Parol Evidence.—Where a Eeceipt and a Note are executed contemporaneously, the receipt is admissible in an action on the note, where there is evidence to show that both were part of one transaction; and oral testimony is admissible to apply the receipt to the note and to prove that it was the only consideration for the note.</p> <p>Promissory Note—Consideration.—Money Advanced by the Plaintiff to the defendant on account of the latter’s share of the capital in a business, which sum he was to invest and contribute to the business, is sufficient consideration to support a note given to secure such sum, and plaintiff may recover on such note, though the plaintiff and defendant were partners at the time of giving such note.</p>

<p>APPEAL from the Superior Court of Santa Barbara County.</p>

<p>APPEAL from the Superior Court of Lake County.</p>

<p>County Supervisors—Contract With Physician—Discharge.—In an action by a physician to recover damages for breach of contract made with him by the supervisors of a county, held, that defendant was not, on the facts recited in opinion, justified in discharging plaintiff previous to the expiration of the time for which he had been employed to perform the service.1</p>

<p>Mortgage—Fraud in Execution.—Where, in an Action of Foreclosure of mortgage, a cross-complaint is filed, charging plaintiff and others with fraud and conspiracy regarding the execution of the mortgage, and the lower court finds against the defendant as to such fraud, the plaintiff is entitled to his judgment of foreclosure, however fraudulent the conduct of the other parties (joined in such cross-complaint) may be.</p>

This was an action against the defendant county for personal services rendered, for which plaintiff presented to the. board of supervisors his several claims, which claims were rejected. Defendant in the answer denied the validity of a portion of the claims, and set up the fact the plaintiff had already recovered one judgment against the defendant for a portion of such claims and that the action on the rest of such claims is therefore barred. .

<p>Costs—Amendment of Judgment.—No Error Appearing from the transcript on appeal, the order amending judgment as to costs is affirmed.</p>

This was an action for the recovery of certain goods. Judgment was rendered for plaintiff. Defendant moved for a new trial, which was granted on condition that plaintiff failed to comply with the order of court; awarding to defendant costs and expenses of suit. The other facts appear in the opinion.

<p>Street Assessments—Assessment Lists—Evidence—Pleading.— Under the provisions of the statutes, as applied to actions to enforce street assessments, the assessment lists do not prove even prima facia that the city council “has caused a survey and estimate to be prepared of proposed work, to be filed with the city clerk,” or “fixed a time for the hearing upon such proposition,” or ordered work or improvements to be done; nor are the lists evidence of a publication of notice soliciting bids, or of the awarding of a contract, or of any of the acts of officers of the municipality which precede, at least, the doing of the work. None of these acts separately, or all of them together, constitute the levy of an assessment, yet all of them must be averred, and, if they are denied, must be proved by competent evidence.</p>

This was an action for damages for a breach of contract. Defendant had agreed to hire plaintiff to cut two hundred miles of ditch with his ditching machine at one-half the price the same would cost to cut by hand, such price to be ascertained by cuttting one mile by hand in a specified manner. Plaintiff alleges that he was ready to perform the work, when defendant notified him not to proceed. The court rendered judgment for plaintiff. Defendant appealed.

<p>APPEAL from the Superior Court of Merced County.</p>

<p>Appeal—Bill of Exceptions—Motion for New Trial.—In the absence of a bill of exceptions, the order denying defendant’s motion for a new trial will not be reviewed on appeal.</p>

This was a proceeding to determine the rights of parties to property under a deed of trust. The provisions of such trust were that the trustee should conduct certain litigation regarding the trust property, and when the same was settled sell the property and make certain dispositions of the proceeds.

This was an action under the forcible entry and detainer law to recover the possession of certain premises and damages for the withholding thereof. Plaintiff alleged a lease by him to defendant, which lease had expired, and that since the expiration of the lease defendant refused, though duly notified, to deliver possession of the premises to plaintiff.

<p>APPEAL from the Superior Court of San Joaquin County.</p>

This cause having been set for trial and being regularly called on the day set, and the plaintiffs not appearing, defendant proceeded with his case. Thereupon the court rendered judgment for defendant. Plaintiffs appealed. The other facts' appear in the opinion.

<p>APPEAL from the Superior Court of Yolo County.</p>

<p>APPEAL from the Superior Court of Santa Cruz County.</p>

<p>Vacating Judgment—New Trial—Surprise—Newly Discovered Evidence.—No surprise on the part of defendants being shown from the facts, and no new evidence being produced, the orders denying a motion to vacate judgment on the ground of surprise, and denying a motion for a new trial on the ground of newly discovered evidence, were properly made, and are affirmed.</p>

<p>APPEAL from the Superior Court of San Joaquin County.</p>

<p>APPEAL from the Superior Court of Amador County.</p>

<p>Appeal.—A Judgment Entered by Consent in the Justice’s Court is not appealable, and the superior court is authorized to dismiss such an appeal of its own motion.</p>

<p>APPEAL from the Superior Court of Siskiyou County.</p>

<p>Prostitution.—Judgment Held not Sustained by the evidence.</p>

<p>APPEAL from the Superior Court of San Joaquin County.</p>

<p>Costs.—Where the Issue is Found Against the Plaintiffs they are not entitled to recover any costs or disbursements incurred in the action.</p> <p>Injunction.—The Pleadings of a Party to Whom Belief is Granted must be Sufficient to warrant the relief. Where plaintiff, therefore, does not allege that defendant asserts any claim to his property, he is not entitled to a judgment restraining defendant from asserting such a claim.1</p>

<p>APPEAL from the Superior Court of San Joaquin County.</p>

<p>Executor—Purchase by, at Execution Sale.—The executor of an estate has no authority to bid for or purchase for the estate, at an execution sale, property sold to satisfy an execution on a judgment in favor of the estate, and, such sale being void, gives no cause of action against the estate for damages by reason of such sale.1</p>

This was an action for the recovery of certain flasks of quicksilver. Defendant denied plaintiff’s right to the same, claiming ownership in himself. The Empire G. & S. M. Co., being allowed to intervene, claimed possession and ownership in itself, which was denied by both plaintiff and defendant.

<p>APPEAL from the Superior Court of San Joaquin County.</p>

<p>APPEAL from the Superior Court of San Joaquin County.</p>

Defendant in this case was charged with burglary, and after trial convicted. An appeal from the judgment of the trial court was taken on the grounds stated in the opinion.

The defendant was charged with assault with intent to commit rape. The usual instructions defining the crime, etc., were given. The defense then requested the court to instruct the jury that if defendant did not intend or attempt to have carnal intercourse with the child, but simply placed himself in close proximity to her for the purpose of satisfying his depraved taste, the offense did not constitute an assault with intent to commit rape. The instruction was refused.

<p>APPEAL from the Superior Court of the City and County of San Francisco.</p>

<p>Application for discharge on habeas corpus.</p>

<p>Appeal.—Where Ho Index is Prefixed to the Transcript, the court, under the rule, is authorized to dismiss the appeal.</p>

<p>Certiorari—Rehearing not Permissible After Judgment.—Certiorari cannot be used to review an error or irregularity committed in exercise of a court’s jurisdiction. A rehearing after judgment, on a writ of review, cannot be had in the lower court. The question upon the return of the writ is whether the court, whose judgment is the subject matter of review, pursued its jurisdiction, and the judgment on that question is reviewable only on appeal.</p> <p>Municipal Court of Appeals—Dismissal of Appeal.—A dismissal of an appeal from the justice’s court, taken on questions of law and fact, by the municipal court of appeals of the city and county of San Praneisco, after the cause has been placed on the calendar by stipulation of the parties, if the appellant fails to appear at the trial, although no notice of a motion to dismiss has been given, though irregular, is not reviewable on certiorari.*</p>

<p>APPEAL from the Superior Court of Contra Costa County.</p>

<p>Attorney and Client—Compromise—Findings__Where the matter of a compromise was talked over between a client and his attorney, and the attorney did compromise on the terms which he supposed his client assented to, a finding is justified that the client authorized his attorney to compromise as he did.1</p> <p>Attorney and Client—Compromise—Appeal.—-Whether an attorney correctly understood his client, regarding his desires as to a compromise, is a question dependent on the weight of evidence, and, the question being in doubt, the finding of the lower court will not be disturbed.</p>

<p>New Trial—Statement of the Case—Error not Specified.— Where a motion for a new trial was made on a statement of the case, no alleged error of law can be considered unless it is specified in the statement.</p> <p>Evidence—Findings,—Evidence Held to Sustain the findings.</p>

<p>APPEAL from the Superior Court of the City and County of San Francisco.</p>

<p>APPEAL from the Superior Court of San Diego County.</p>

<p>'Appeal.—An Appeal is Dismissable for Some Irregularities in taking it, for failure to prosecute, for want of appearance, or on consent of parties; but where it has been perfected according to law and the appellant appears, he is entitled to be heard upon any question of fact involved in the merits. Because the proposed statement on motion for a new trial was not served upon a certain one of the adverse parties is not ground for dismissal of the appeal.</p>

<p>APPEAL from the Superior Court of the County of Marin.</p>

<p>New Trial—Newly Discovered Evidence—Materiality—Reversal.—If alleged newly discovered evidence is merely cumulative, and every material fact is contradicted by counter-affidavits, and an appellate court cannot clearly say that the court below erred in refusing it, the order refusing it will not be reversed.</p>

This was a proceeding to foreclose the plaintiff’s mortgage on defendant Gillespie’s premises. The complaint alleged sale by Gillespie to the defendant the San Jose I. M. & L. Co., and that said company had covenanted and agreed with Gillespie to pay the mortgage debt and discharge the mortgage lien. The court rendered a judgment of foreclosure and decree of sale. The defendant San Jose I. M. & L. Co. appealed.

<p>Appeal.—A Person cannot Appeal from a Judgment Who is not a Party nor privy thereto, nor injured thereby.</p>

<p>APPEAL from the Superior Court of the City and County of San Francisco.</p>

<p>Homestead—Of What Consists.—A homestead consists of the dwelling-house in which the claimant resides, and the land on which the same is situated, selected as provided by the statute (Civil Code, see. 1237).</p> <p>Findings.—Evidence Held Sufficient to justify the findings.</p>

<p>Appeal.—Where Evidence is Conflicting, the judgment of the lower court will not be disturbed on appeal.</p> <p>Tender—Objections—Waiver.—By the Statute (Code Civ. Proe., see. 2076), it is provided that the person to whom a tender is made must, at the time, specify any objection he may have to the money, instrument, or property, or he "must be deemed to have waived it; and if the objection be to the amount of money, the amount or the kind of property, he must specify the amount, terms, or kind which he requires, or be precluded from objecting afterward.</p>

<p>Attorney—Disbarment or Suspension.—Charges against an attorney at law, which, if proven, would not clearly constitute a cause for suspension or removal under the provisions of the code (Code Civ. Proc., sec. 287), will not be investigated on proceedings to remove Mm.</p>

<p>APPEAL from the Superior Court of the City and County of San Francisco.</p>

<p>Appeal.—The Use of the Word “Defendant” Instead of “Defendants” in conclusions of law, when clearly a clerical misprision, is not entitled to any regard on appeal.</p>

<p>APPEAL from the Superior Court of the City and County of San Francisco.</p>

<p>Statute of Frauds.—An Agreement to Create a Lien on Real Estate will be void unless made in writing, subscribed by the party to be charged. It is not necessary to allege, in an action to enforce such lien, that the agreement was in writing.</p> <p>Mortgage.—A Foreclosure Decree must not Direct a Sale of a Greater Interest than that mortgaged; it cannot embrace property of the mortgagor acquired subsequently to the execution of the mortgage.1</p>

<p>Promissory Note—Failure of Consideration.—A promissory note given by defendant to plaintiff on the representation, innocently made, that the probate court had allowed plaintiff such sum for his services as guardian of defendant, when in reality no such sum had been allowed, is invalid for failure of consideration.</p>

<p>Findings—Sufficiency of Description of Deeds.—Where, in an action concerning real property, there are but two deeds in the ease considered, and they are referred to, in the findings and statement on motion for a new trial, as the “short deed" and “long deed,” and the findings, evidence, and decree clearly show what property was described in the one known as the “short deed,” and that the other deed, called the “long deed,” contained a description of the residue of the property in controversy, the reference to them by such names is sufficiently certain.</p>

<p>Evidence—Becord of Conviction of Murder as.—The record of conviction of murder is admissible as evidence of the fact that the person convicted was implicated in said murder.</p>

<p>APPEAL from the Superior Court of Santa Barbara County.</p>

<p>Judgment—Description of Property.—It being an admitted fact that the Geyser springs and hotel improvements are located on the N. E. of section 13 (the property in controversy), there was no impropriety in adding to the description of the property in the judgment the words “the same being known as the ‘Geyser Hotel property.’ ”</p>

<p>APPEAL from the Superior Court of Los Angeles County.</p>

<p>Railroad—Fires—Allegation and Proof.—Where the complaint in an action against a railroad company alleges the destruction of the plaintiff’s property by a fire kindled on his premises by sparks which proceeded directly from defendant’s locomotive to plaintiff’s land, but the proof is that such property was destroyed by a fire kindled on the adjoining land by sparks from the same source, which fire moved onto plaintiff’s land, this does not constitute a material variance between the proof and the allegation.</p> <p>Railroad—Fires—Proof of Similar Acts.—It is not erroneous to permit proof that prior and subsequent to the fire which produced the injury complained of, other fires had been kindled by defendant’s engines.* 1</p> <p>Railroad—Fires—Evidence of Repairs to Engine.—Evidence of repairs made on the smokestack of the locomotive, which it is alleged caused the fire complained of, is properly admissible.</p> <p>Railroad—Fires—Preponderance of Evidence.—Whether the preponderance of evidence was on the one side or the other of a question of fact is a matter for the jury alone to determine.</p> <p>Railroad—Fires—Instructions to Jury.—An instruction to a jury that if they “find that the fire complained of was kindled by defendants under circumstances incompatible with the idea that the engine was of approved construction and properly managed,” they shall find for plaintiff, implies that there was evidence sufficient to justify such a finding, and is erroneous.</p>

<p>APPEAL from the Superior Court of the County of Yolo.</p>

<p>APPEAL from the Superior Court of Amador County.</p>

<p>APPEAL from the Superior Court of the County of Sacramento.</p>

<p>Appeal-—Conflicting Evidence.—Where the Judgment of the Lower Court is founded on conflicting evidence, it will not be disturbed on appeal.</p>

<p>APPEAL from the Superior Court of Los Angeles County.</p>

<p>APPEALS from the Superior Court of Mendocino County.</p>

Mandamus to compel the new city hall commissioners to allow fitting up of a public morgue in place set apart by resolution of the board of supervisors.

<p>Judgment—Conclusiveness to Bar Subsequent Action.—A Judgment Against a City in a former action, declaring that no dedication of certain land had been made, is a bar to a subsequent action by the city against the same parties to obtain possession of the land under the same claim of alleged dedication.</p>

<p>Benevolent Association—Sick Benefits—Burden of Proof.—In an action against a benevolent association for the recovery of sick benefits, the burden of proof is on the plaintiff to establish a by-law, rule, or custom rendering the society liable for such sick benefits.</p>

<p>'Appeal Dismissed as to Defendants, Who Waived a Eight to Appeal by stipulation in the lower eourt.1</p>

<p>APPEAL from the Superior Court of the City and County of San Francisco.</p>

<p>Assignment.—Upon the Assignment of a Secured Debt, the creditor may also assign his security.</p>

In a contest to determine petitioner’s right to such office he was defeated, but subsequent to the judgment in the election contest, in the superior court, and prior to the application here made, there was a change in the judge of such superior court.

<p>Appeal.—The Approval of an Undertaking, on Appeal to the supreme court, may be set aside by the superior court, and the power to set it aside is not taken away by the filing of a transcript in the supreme court.</p>

The defendant was convicted on a charge of assault with intent to commit murder, and on appeal from an order denying him a new trial assigned as error certain portions of the charge of the judge to the jury.

Petition for writ of mandate to compel the state controller to draw his warrant for certain funds in the state treasury, deposited by the regents of the state university, and thereafter ordered drawn therefrom by resolution of the regents, in the form provided by statute.

<p>Appeal.—Where There are Conflicting Instructions on material issues in a ease, the judgment will be reversed.</p>

<p>Appeal—Conflicting Evidence.—Findings of a Jury on material facts will not be disturbed where the evidence is conflicting.</p> <p>Appeal—Erroneous Admission of Evidence.—Judgment will not be Reversed on the ground of erroneous admission of evidence, where such error resulted in a finding of nominal damages only, against the party claiming injury therefrom.</p>

<p>Appeal.—Where There is a Substantial Conflict in the Evidence on a material issue, the finding of the jury will not be disturbed.</p> <p>A Verdict, if Justified by the Evidence, is not contrary to law.</p> <p>Appeal—Harmless Error.—Reversal will not be Granted for errors in the admission of evidence which do not affect the substantial rights of the appellant.</p>

Action to foreclose a mechanic’s lien by plaintiff, who was a laborer employed by defendant to work on a flume, under a contract by defendant with the Mendocino Flume & Mining Company.

<p>Appeal—Findings not Sustained by the Evidence.—Where a finding is on a material issue, and there is no evidence to sustain it, the judgment will be reversed and a new trial ordered.</p>

<p>Application for mandamus to compel the auditor of Alameda county to draw a warrant for payment of petitioner’s salary as assessor of a county.</p>

Action to recover from the appellant, and from several other stockholders of the California Fruit and Meat Shipping Company, the price of certain cattle delivered to such corporation, and for a several judgment against each of his proportion of the price of such cattle. The amount alleged to be due by appellants was less than three hundred dollars in each case, but the aggregate amount sought to be recovered exceeded that sum.

This was an application for an injunction to prevent defendants from draining the waters of a certain lake into the Pacific ocean, the complaint averring in substance that plaintiff is a corporation engaged in the manufacturing, transportation, and sale of lumber; that its mills are located on the bank of said lake, and that it is necessary that a certain depth of water in such lake, which now exists, should be maintained, the same being essential to the conduct of…

<p>APPEAL from the Superior Court of Monterey County.</p>

This action was brought with and at the same time as Kerns v. McKean, 65 Cal. 411, 4 Pac. 404, and involves the same question, based on the same facts as in that action.

<p>Guardian—Release of Surety.—Where the defendant became a surety in place of a surety on the former bond of a guardian, he and the other sureties on the former bond became joint obligors-, though their contracts were contained in different instruments; and under the law, as it existed in California in 1871, a release of one of the joint obligors released all the co-obligors, and therefore, under an order releasing all the obligors on the former bond, but not including the defendant in the release, his liability ceased at the time of such release, and- he cannot be held liable for any subsequent defalcation.</p>

<p>Decree—Allegations of Complaint to Support.—Where a complaint alleges that certain defendants were the owners of stoek, and that they transferred the same for certain purposes to another, who, in turn, in fraud and violation of the agreement under which he received the stock, transferred the same to the appellant, who, having full knowledge of the facts, threatened to sell such stock, a decree as to him, enjoining the sale or the offering for sale of such stock, and directing that he return" and deliver the same in specified amounts to persons named, is justified by the allegations of the complaint.</p>

<p>APPEAL from the Superior Court of Humboldt County.</p> <p>Action by plaintiff to enforce his lien for labor on logs cut by him, and owned by the defendant.</p>

<p>Prostitution—Enticement of Female.—Conviction held not sustained by the evidence.1</p>

<p>Supplemental Proceedings—Mode of Procedure.—As proceedings supplementary to execution are purely statutory, the mode of procedure thereon provided for by statute must be followed; and a failure to comply with the statute will vitiate the proceedings.</p> <p>Supplemental Proceedings—Record as Evidence in.—A judgment creditor, in a supplementary proceeding against a garnishee, brought in pursuance of an order made under the statute (Code Civ. Proc., sec. 720), must aver and prove the existence of the order and of the proceedings by which the order was founded. The record of such proceedings, to be admissible in such action, must be filed with the clerk of the court, and must come, either as an original or authenticated copy, from the hands of the officer in whose custody it is kept.1</p>

<p>Appeal—Dismissal for Failure to File the Transcript in Time.— Statement having been settled more than forty days before the transcript of record was served and filed, time to file the same not having been extended, and no transcript having been served or filed until notice to dismiss the appeal had been served and filed, appeal ordered dismissed.</p>

<p>Landlord and Tenant—Adverse Possession by Tenant.—A tenant is estopped to deny his landlord’s title, and such estoppel continues, not to the end of his term merely, but to the end of his possession; or, where there has been a repudiation of the tenancy, and a consequent adverse holding by the tenant, until the statute of limitations has run in his favor; and such an adverse possession cannot be set up without a surrender of possession as tenant.</p>

<p>■ Legislature—Manner of Reading Bills.—Under the Provision of the California constitution, article 4, section 15, which requires that every bill shall be read on three several days in each house, it is not required that the bill shall be read on three several days after an amendment thereto.1</p>

<p>APPEAL from the Superior Court of the County of Merced.</p>

<p>APPEAL from the Superior Court of the City and County of San Francisco.</p>

<p>APPEAL from the Superior Court of the City and County of San Francisco.</p> <p>The decision on a prior appeal is reported in 57 Cal. 293.</p>

<p>APPEAL from Superior Court of the City and County of San Francisco.</p>

<p>APPEAL from the Superior Court of the County of Monterey.</p>

<p>APPEAL from Superior Court of the City and County of San Francisco.</p>

<p>Bill of Exceptions—Necessity for.—Where the Whole Case Appears on the Record, no bill of exceptions is requisite; the purpose of the bill of exceptions being to place on the record that which, without it, would not so appear.</p>

<p>Power of Attorney—Revocation by Death.—A power of attorney to convey becomes extinct by the death of the constituent, although the power be irrevocable, and no title passes by a deed subsequently made by the attorney.</p> <p>Power of Attorney—Conveyance by Attorney in Payment of His Debts.—Where the intention in executing a power of attorney was to give the attorney control of the property for his own benefit, he may convey the same in payment of his own debts.</p> <p>Evidence.—Declarations of an Owner of Land in Disparagement of his title are admissible in evidence against him, and all claiming under him, while the legal title remains in him; but such declarations are inadmissible where made by him after he has parted with his title.</p>

<p>Adverse Possession—Evidence.—On a Review of the Evidence, Held, that the plaintiff had not acquired title by adverse possession to the whole of the premises in dispute, and judgment affirmed.</p>

<p>Ejectment—Effect of Intervention.—The effect of an intervention is to add new parties for the purpose of determining all conflicting claims to the matter in controversy, and does not affect the nature of the action at all, or-interfere with the trial thereof; and therefore, where the plaintiff, in an action of ejectment, desires a jury trial, the filing of an intervention praying equitable relief will not affect such right, and a denial of a jury is error.1</p> <p>.Ejectment—Intervention, When Allowed.—A person who does not claim to have derived title from both plaintiff and defendant in ejectment, and does assert title in himself paramount to both, cannot intervene in such action. Whether intervention applicable to ejectment at all, quaire.</p> <p>' Ejectment—Intervention—Amount of Judgment.—Where an intervener in an action prays for only part of the demanded premises, it is error for the court to render judgment in his favor for the whole of the same, and to enjoin the plaintiff from prosecuting or maintaining an action therefor.1</p>

<p>APPEAL from Superior Court, City and County of San Francisco.</p> <p>Motion to dismiss appeal.</p>

<p>APPEAL from Superior Court, County of Inyo.</p>

<p>Appeal—Conflicting Testimony.—Where, on Appeal, the Case presented is one of conflict of testimony, the judgment of the lower court will not be disturbed.</p>

<p>APPEAL from Superior Court, City and County of San Francisco.</p>

<p>APPEAL from Superior Court, County of Butte.</p>

<p>Findings—Submission on Agreed State of Facts.—Findings are not necessary in a case submitted on an agreed statement of facts.</p>

<p>Demurrer—Error in Overruling—Specification.—Where No Demurrer Appears in the transcript, the overruling of the demurrer to the complaint, specified as error, will not be considered on appeal.</p> <p>Evidence—Wrongful Admission.—A Reversal is not Warranted by the Admission without prejudice to the appellant of immaterial or incompetent evidence.</p>

<p>APPEAL from Superior Court, Los Angeles County.</p>

<p>Corporations.—A Guaranty is Without Consideration Where Pounded on an Alleged agreement executed by officers of a corporation, when they have no authority to execute it.</p>

<p>APPEAL from Superior Court, Butte County.</p>

The petition for insolvency mentioned in the opinion is as follows: “ [Title of Court and Cause.] “To the Hon. John Caldwell, Superior Judge of said Court: “The petition of Wilcox & Powers & Co. (a copartnership), Carton, McCarthy & Co. (a copartnership), William Treloar, Theodore Wilhelm, and William Campbell, all residents and citizens of the state of California, respectfully shows that Jas.

<p>Fraudulent Sale of Chattels—Change of Possession.—A sale of chattels not accompanied by an immediate delivery, and actual and continued change of possession, is void as against creditors, and the chattels, the subject of the sale, may be seized on process by the sheriff.</p>

<p>Shorthand Reporters—Constitutionality of Act of March 21, 1885.—California act of March 21, 1885, relative to compensation of official shorthand reporters, considered, and held that the act was not unconstitutional, nor a delegation of power to the judiciary of legislating in regard to the matter, nor in violation of the county government bill, requiring a uniformity in county governments, nor in violation of article 11, section 6 of the constitution.</p>

<p>Remittitur—Motion to Recall to Correct Errors.—A motion to recall a remittitur to enable an examination and correction of errors of the court below, since the remittitur went down, is not a proper way to reach such errors, and the motion will be denied.</p>

<p>Evidence—Reversal for Insufficiency.—Where Evidence is Substantially conflicting, judgment -will not be reversed on the ground of insufficiency of the evidence to justify it.</p> <p>Findings—On What Matters Necessary.—The Judgment will not be Reversed where there are findings on all the issues because of findings on probative matters outside of the issues.</p>

<p>Pleading.—A Party in One Action is not Bound by Allegations in a complaint in another action to which he is not party.</p>

<p>Slander—Allegations ón Information and Belief.—In an action for slander it is not a sufficient averment of the speaking of slanderous words to allege that at a certain time, in the presence of certain persons, “as the plaintiffs are informed and believe,” the defendants spoke the words complained of; and the defect in the complaint arising therefrom goes to the sufficiency of the facts stated, and not to the manner of stating them, and may be taken advantage of by a general demurrer.</p> <p>Slander—Cost Bill.—Counsel Fees are not Recoverable in an action of slander by a defendant in whose favor a judgment is rendered, unless such fees are included in his memorandum of costs.</p>

<p>APPEAL from Superior Court, Siskiyou County.</p>

<p>APPEAL from Superior Court, Modoc County.</p>

<p>Quo Warranto—Usurpation of Franchise—Answer.—In quo warranto proceedings for usurpation of a corporation franchise, if the verified complaint alleges facts showing the illegality of the pretended corporation, such facts must be specifically denied by the answer, and a denial of the legal conclusions drawn from the facts merely, is not sufficient.</p> <p>Corporation—Pleading—Legal Conclusions.—An allegation in a pleading that a corporation was duly, regularly, and legally formed, and that it has continued to act as such, is a mere averment of a legal conclusion and raises no issue.</p> <p>Quo Warranto—Usurpation of Franchise—Burden of Proof.— In a proceeding for usurpation of franchise of a corporation, the burden of proof is on the defendants to show that the corporation was legally formed, and that its existence is legal, and in such proceeding the answer should set forth the facts showing the same.</p> <p>Quo Warranto—Prior Proceedings a Bar.—Proceedings brought by the attorney general to determine the rights of defendants to exercise a franchise as a corporation are not barred by a prior application for a writ of mandate to compel a board of supervisors to fix rates of toll to be taken on a road claimed by the alleged corporation.</p> <p>Quo Warranto—Maintenance by Attorney General.—Estoppel.— The fact that the person on whose relation the proceeding of quo warranto, for usurpation of a corporate franchise, was instituted was at one time acting as an officer of the alleged corporation, will not operate as an estoppel against the maintenance of the action by the attorney general.1</p>

<p>APPEAL from Superior Court, Sau Joaquin County.</p>

<p>Waters.—Actions to Restrain the Diversion, Obstruction, and Use of waters of a stream, and for damages for the same, are suits in equity to abate nuisances.</p> <p>Equity—Verdict of Jury.—In a Suit in Equity, the Court may Order a jury, though the party is not entitled thereto; but, in such case, the verdict of the jury on the issues submitted by the court is advisory only, and it may be adopted or rejected by the court. A general verdict is insufficient, and a refusal to instruct a jury in such cases to find a general verdict is not error.</p> <p>Waters.—Five Years’ Adverse Possession is Sufficient to Bar an Action to enforce a water right.</p> <p>Waters—Diversion of Water—Joint Action for.—Where each of two defendants made diversion of water for his own benefit, separately from, and without any collusion, arrangement, or understanding with, his codefendant, and without any consent or joint action between them, a joint action to recover damages for such diversion is not maintainable against them.</p>

<p>Appeal—Reversal—Restitution by Losing Party.—Where, on appeal, a judgment is reversed, the appellate court will not compel restitution by the losing party of money which was not paid after, or in consequence of, the judgment appealed from, but was paid in consequence of an order made prior to the judgment, which order was not appealed from.</p>

<p>APPEAL from Superior Court, City and County of San Francisco.</p>

<p>Nonsuit.—It is Error to Grant a Nonsuit Where the Plaintiff Gives Evidence tending to sustain the issues presented in the complaint.</p>

<p>APPEAL from Superior Court, County of Fresno.</p>

<p>APPEAL from Superior Court, County of Lake.</p>

The intestate and defendant Russell were engaged in a partnership business. Said defendant purchased his partner’s interest in the business for a specified price, and agreed to pay a further sum if, in the opinion of certain parties (the other defendants), the profits of the business justified him in so doing, the matter to be decided within three years.

Ejectment. Defendants set up an equitable title to lands on one side of a certain wire fence in accordance with an oral agreement establishing such fence as the division line between defendants’ and plaintiff’s land. On the trial the court refused to strike out the testimony of the witness Criss, who had been permitted to testify, against plaintiff’s objection, regarding the understanding in the community as to the division line.

<p>APPEAL from Superior Court, County of Contra Costa.</p>

<p>APPEAL from Superior Court, County of Contra Costa.</p>

<p>Embezzlement.—Verdict Held Sustained by the evidence.</p> <p>New Trial—Newly Discovered Evidence.—Where a Motion is Made for a new trial on the ground of newly discovered evidence, if it was in the power of the person so moving to have produced the evidence on the first trial, the motion is properly denied.</p>

<p>APPEAL from Superior Court, City and County of San Francisco.</p>

<p>APPEAL from Superior Court, City and County of San Francisco.</p>

<p>APPEAL from Superior Court, City and County of San Francisco.</p>

<p>Criminal Trial—Continuance for Absence of Witnesses.—It is error, in a criminal trial, to refuse the defendant a continuance, asked for on the ground of absence of witnesses from the county, where, from the uncontradicted affidavit of the defendant, it appears that such witnesses were regularly' subpoenaed; that the facts which defendant expected to prove by them, and which are stated in the affidavit, are material to the defense; that he could not prove the same facts by any other witnesses; and that he expected to be able to procure their attendance, if the trial was postponed.1</p> <p>Criminal Trial—Self-defense.—To Establish Plea of Self-defense, and entitle defendant to acquittal, it is not necessary that the fact of danger to life and limb should be shown by the evidence beyond a reasonable doubt, and to charge the jury that such proof is necessary is error.</p> <p>Criminal Trial—Evidence of Character of Defendant.—In a criminal case the jury must take evidence of character into consideration for the purpose of determining whether it creates a reasonable doubt of guilt, and the consideration of such evidence by the jury is not confined to eases where the guilt of the accused is doubtful.</p>

<p>APPEAL from Superior Court, County of Mendocino.</p>

<p>APPEAL from Superior Court, County of San Joaquin.</p>

<p>APPEAL from Superior Court, County of Humboldt.</p>

<p>APPEAL from Superior Court, County of Nevada.</p>

<p>APPEAL from Superior Court, County of Mono.</p>

<p>Appeal.—Findings Held Supported by the evidence.</p> <p>Appeal.—Where There is a Substantial Conflict in the Evidence, the court will not, on appeal, disturb the findings, but will affirm the judgment.</p>

<p>Contracts — Consideration—Findings—Evidence—Presumption. Judgment against plaintiff, and findings against sufficiency of consideration of written instrument, held, contrary to the evidence, as the uneontradieted evidence of defendant’s witness, instead of overcoming the presumption in favor of the written instrument on which plaintiff based his claim, really showed a sufficient consideration in all respects as foundations for findings in plaintiff’s favor.</p>

On the trial in the court below (one of the departments of the superior court of the city and county of San Francisco), in an action of criminal libel against petitioner, he objected to the cause being tried by the judge then sitting, on the ground of bias and prejudice of such judge, and set out in affidavits the facts claimed to constitute such bias, and moved that the cause be postponed or transferred to another department of the same court on that ground.

<p>Mechanics’ Liens—Time for Filing.—A mechanics’ lien is not acquired upon a building by a subcontractor who has furnished materials to be used thereon, by filing his claim prior to the completion of the building: Code Civ. Proc., see. 1187.1</p>

<p>Appeal Dismissed.—Appeal Dismissed on the Ground That the Court had Jurisdiction of another appeal on the merits.</p>

<p>Bonded Warehouse Receipts — Storage of Liquors. — Where brandy manufactured for the owner by a licensed distiller is stored in a United States bonded warehouse, regulated by the act of Congress of March 3, 1877, and the treasury regulations of May 15, 1877, in order to delay the payment of the revenue tax, such laws requiring brandy to be stored in a distiller’s name, but not requiring the distiller to be the owner, if the warehouse receipt was issued to the distiller, and he subsequently sold the liquor to another, without authority, and transferred the receipt to him, the purchaser was a bona fide purchaser for value and without notice, and the owner of the liquor was entitled to a return of his property on paying to such purchaser his payments for warehouse charges and the government tax.</p>

<p>Assessment—Findings—Facts in Issue.—Where the Validity of an assessment is put in issue by the pleadings in an action, any fact or facts going to show that no valid assessment was ever levied are within the issues and properly included in the findings.</p>

<p>Sale—Instructions.—For Misleading and Contradictory Instruction as to the effect of the sale of personal property which was not in vendor’s possession, and not accompanied by change of possession, judgment reversed.</p>

<p>Principal and Agent—Declarations, Admissibility Against Principal.—Declarations by an agent or servant employed to perform a certain duty are not admissible against the principal, unless they are part of the facts and circumstances of some act happening within the scope of the servant’s or agent’s employment.</p> <p>Railroad—Declarations of Engineer as to Cause of Injury.—In an action of damages for injury to a child by a railroad train, the declarations of the engineer concerning the accident, made from three to five minutes after the casualty happened are admissible against the principal as part of the res gestae.</p>

<p>Boundaries—Possession Under Mistake as to Division Line.— Where coterminous proprietors are in possession of certain land under a mutual mistake as to the division line, such possession has no effect upon their legal rights, nor is it adverse or conclusive against the assertion of any existing rights based upon the true title.1</p> <p>Boundaries —Verbal Agreement Concerning. — Where coterminous proprietors enter into a verbal agreement to have the true division line surveyed, and to abide by the line so established, such agreement is binding, and is not within the statute of frauds.2</p>

<p>APPEAL from Superior Court, County of Santa Cruz.</p>

<p>Husband and Wife—Liability for Necessaries Furnished to Wife.—In an action against a husband for necessaries furnished his wife, the complaint must allege that the goods were sold and delivered to defendant and an averment of the furnishing of such goods to the wife is not sufficient. Although no demurrer to the complaint was filed, the absence of such necessary averment may be taken advantage of on appeal.</p>

This action was brought to recover damages for injuries sustained by a beating, inflicted on plaintiff by the defendant. Verdict was rendered in plaintiff’s favor for thirteen hundred dollars. Defendant appealed.

<p>Pleadings—Cross-complaint and Answer.—A Cross-complaint in an Action must be as distinct and separate from the answer therein as any other independent pleading in the cause, and each must rest on its own merits.</p> <p>Pleading.—Where an Answer and Cross-complaint are Both Joined, in the same pleading, an "objection thereto is deemed waived if the plaintiff consented in writing to allow such pleading to be filed and stand as defendant’s answer and cross-complaint.</p>

<p>APPEAL from Superior Court, County of Monterey.</p>

<p>Action to Recover Personal Property—Demand.—In an action to recover personal property, or its value, where it appears that the property came lawfully into the possession of the defendant, a demand and refusal to deliver must be shown; but if the original possession of the property was acquired by tort, no demand previous to the institution of the suit is necessary.</p> <p>Action to Obtain Possession of Real Property—Demand.—One acquiring title to real property who is not in possession is entitled to be let into possession on demand, and, until such demand, he cannot maintain an action to obtain possession against a person who is lawfully in possession.</p> <p>Fixtures—Engine and Machinery.—Where a tenant of real property, with the permission of the owner, erects .an engine and boiler on a foundation made of brick and of timbers sunk into the ground, and attaches such engine and boiler and machinery to a building which is part of the realty by means of bolts and screws which are easily removed; quaere, whether such boiler and engine constitute real or personal property.</p>

<p>APPEAL from Superior Court, County of'Napa.</p>

<p>APPEAL from Superior Court, County of Fresno.</p>

<p>Appeal.—Where There is a Conflict in the Evidence, the judgment will not be reversed on the ground that the findings are not supported by the evidence.</p> <p>Adverse Possession.—Findings Reviewed, and Held not Supported by the evidence.*</p>

<p>Sales—Immediate Delivery and Change of Possession.-—Where a sale is not accompanied by an immediate delivery and continued change of possession, it is void as against the vendor’s creditors.</p>

<p>APPEAL from Superior Court, County of Tulare.</p>

<p>New Trial—Presumption in Favor of Order Granting.—Where a new trial is ordered by a court, every intendment is in favor of the order, and the legal presumption is that it was made on the ground of insufficiency of the evidence to justify the decision; and, in the absence of all proof of abuse of discretion in the trial judge, such order is not reversible.</p>

<p>Ejectment—Sufficiency of Complaint.—Where a complaint in an action of ejectment brought by a vendor against a vendee avers ownership of the property in the plaintiff, the making of a contract for the sale thereof to defendant, the payment of a part of the contract price by defendant, his entry into possession, the tender of a deed, demand and refusal of payment, notice of rescission of contract by plaintiff, tender to the defendant of the money paid, with interest, and demand of possession, which was refused, it is sufficient.</p> <p>Vendor’s Remedy When Vendee Refuses to Perform.—Where a vendor of real estate has kept all his covenants in a contract of sale, and the vendee refuses to perform his part, the vendor may rescind the contract or sue for specific performance.</p> <p>Judgment of Nonsuit—Admission as Evidence.—A judgment of nonsuit is not final, and determines nothing, and the admission of such a judgment as evidence to establish title to land is error.</p>

<p>Partnership—Eight of Surviving Partner.—-Under section 1585, Code of Civil Procedure, where a partnership is dissolved by the death of one of the partners, the surviving partner is entitled to all the assets of the firm and to settle up the business.</p> <p>Administration—Claim of Surviving Partner must be Presented. Where all the assets have been taken possession of by the administrator of a deceased partner, under section 1493 of the Code of Civil Procedure, the surviving partner cannot bring suit against such administrator for Ms interest in such assets without first presenting his claim to such administrator.</p>

<p>Quieting Title—Title Founded on Fraudulent Judgment.— Where in an action to' quiet title to land it appears that the title of plaintiff is derived through a fraudulent judgment, it must be made to appear that the parties defrauded, where they had notice of such fraudulent judgment, took proper steps to avoid the consequence of such judgment by filing a motion under section 473, Code of Civil Procedure, to have the fraudulent judgment "set aside.</p> <p>Trial—Buie of Court—When Set Aside.—A rule of the trial court established for the promotion of justice may, in the discretion of the court, and to meet the ends of justice, be set aside.</p> <p>Mortgage—Tender After Due—Effect on Lien.—The tender of the amount due on a debt which is secured by mortgage, after due, will not release the mortgage lien.</p>

<p>APPEAL from Superior Court, County of Santa Clara.</p>

<p>Mortgage—Deed Absolute—Evidence—Book Accounts.—In proceedings for redemption from a mortgage, where the question at issue is whether a deed absolute in form with an agreement for reconveyance was intended as a mortgage or not, a book of account cannot be introduced in evidence to show that defendant credited plaintiff with.the alleged purchase price of the lot in controversy.</p>

<p>Contempt.-—Order to Show Cause Discharged and proceedings dismissed.1</p>

Action for claim and delivery. The verdict and judgment were not in the alternative form, but merely for plaintiff for the sum of eleven hundred dollars and interest.

<p>Toll-road—Mandamus—Demurrer to Petition.—Where an application is made to a superior court for a writ of mandate to compel the board of supervisors of a county to locate toll-gates and to fix rates of toll on a certain road which it is claimed in the petition the corporation petitioner had a right to collect tolls upon, the superior court is in error if it sustains a demurrer to such petition on the ground that it does not appear therefrom that the petitioner had or owned any road, or right of w'ay for a road, as such a petition states, sufficient to entitle the petitioner to relief.</p>

<p>APPEAL from Superior Court, City and County of San Francisco.</p>

<p>Appeal—Harmless Error in Denying Nonsuit.—A plaintiff cannot, on appeal, complain of the denial of a motion for nonsuit made by the defendant, the cause having thereafter been submitted on the merits and judgment rendered thereon.</p>

<p>Petition for writ of review.</p>

<p>Grand Jury—Contempt.—Writ of Prohibition denied.1</p>

<p>Petition for leave to prove bill of exceptions, and have the same certified as correct.</p>

This was an action for equitable relief by way of injunction to restrain defendant from draining the waters of a certain lake into the ocean, the complaint averring, in substance, that plaintiff is a corporation engaged in the manufacturing, transportation and sale of lumber; that its mills are located on the bank of said lake and that it is necessary that a certain depth of water in such lake, which now exists there, should be maintained, the same being essential to the…

<p>APPEAL from Superior Court, County of Alameda.</p>

<p>APPEAL from Superior Court, City and County of San Francisco.</p>

The petition alleged that the petitioner was a party to an action before the superior court of Los Angeles county, Cheney, J.; that some of the parties to such action, desiring a speedy trial, made application for advancement of the cause on the calendar, but that such application was denied because of the precedence on the calendar of other causes of as much public importance; that such parties then applied to the governor of the state of California, and requested Judge…

Action brought by the attorney general January 19, 1884, to cancel a patent issued by the state of California to the defendants, November 23, 1883, for a tract of swamp land in Tulare county. On motion of the attorney general the action was dismissed. The relators appealed.

<p>Taxation—Power to Tax for Void Debt.—The legislature in California has no constitutional power to tax the people to pay a void debt. So held where, after the courts had declared unconstitutional and void the act of April 23, 1880, entitled “An act to promote drainage,” the legislature attempted to pass another act on March 10, 1885, providing for the payment of indebtedness incurred under said act of' April 23, 1880.</p>

<p>Deed of Gift—Undue Influence.—Where a Deed of Gift was Executed upon consideration of love and affection, and afterward suit was brought by the grantor to cancel the deed, charging the grantee with using undue influence over the grantor in procuring the execution of the deed, in the absence of proof of such undue influence, or of any degree of turpitude on the part of the grantee in receiving and recording the deed, held, that the deed was valid.</p>

<p>Bill of Exceptions.—On Appeal from a Judgment on the Pleadings, the bill of exceptions must show that the appellant excepted to the order granting the motion for judgment, or that he was absent from court when the order was granted, in which case the order is deemed to have been excepted to: Code Civ. Proc., see. 647.</p>

Action to recover the possession or value of certain timber and wood which plaintiff alleged defendant had cut and carried away from land of which plaintiff claimed to be the owner. Defendant failed to answer, and was defaulted.

Replevin. The complaint in this action alleges that the defendant is sheriff of Modoc county, California; that on the 1st of July, 1884, at Alturas, Modoc county, California, plaintiff was the owner and in the exclusive possession of certain saloon furniture, fixtures, and stock set out in the complaint; that the value of such goods was eleven hundred and nine dollars and seventy-five cents; that the defendant, as such sheriff, on the 1st of July, 1884, without the consent…

Forcible entry and detainer. This action was brought under the provisions of the California Code of Civil Procedure respecting forcible entries and unlawful detainers: Sec. 1159 et seq. The property is a small lot in San Francisco, California, and is the same property that was involved in the case of Murray v. Green, 64 Cal. 363. The complaint set out the one cause of action in four separate counts, to each of which a demurrer was interposed.

<p>New Trial—Appeal.—When the Discretion of the Judge Who Presided at the hearing of the motion for a new trial appears to have been fairly exercised, the supreme court will not condemn his action.</p>

Action to have an absolute deed declared a mortgage, and have the property sold to satisfy certain notes described in the complaint.

<p>Waters—Levee—Damage to Property.—Where the Effect of a Levee constructed by the defendant was to retain upon the land of the plaintiff, longer than it would otherwise have remained,' the accumulated water of floods, and his property was injured thereby, the defendant was held liable for damages.</p> <p>Damages—Necessity of Specially Pleading.—In Ordinary Actions of Tort, it is unnecessary to state specifically, and in amounts, the different statements or items which go to make up the sum total of the damages; it is enough to state the facts constituting the cause of action, and claim as much in gross, as damage for the wrong done.</p> <p>Special Damages — Pleading — Evidence.—If Special Damages 'are Claimed, the facts establishing such special damages must be stated with particularity, in order that the defendant may be enabled to meet the charge if it be false, and, if not so stated, cannot be given in evidence.</p>

Action for damages for diversion of water to the use of which the plaintiff claimed to be entitled, and for an injunction against further use of the water by defendant. It appears that plaintiff had appropriated water upon the public lands of the United States before any private claim to the land had been made.

Ejectment for possession of a certain mining and water ditch running across defendant’s lands.

<p>Road—Authority of Supervisors—Province of Court.—Where the question of the necessity of taking land, for a road was settled by a board of supervisors, it is not a question for the court to pass on. 1</p>

<p>Intervention.—A Plaintiff’s Demurrer to an Intervention Should have Been Sustained when the intervention did not allege facts showing that the judgment was unjust, or facts showing that the defendant in the case had a defense to that action.1</p> <p>Mortgage—Redemption—Tender.—Under the California Civil Code, an offer to pay by one who seeks to redeem from a mortgage must be made with intent to extinguish the obligation.* 2</p>

Defendants were informed against, under section 134, Penal Code, for the crime of preparing a false affidavit, to be used on the hearing of a motion for new trial in the ease of Sharon v. Sharon, then pending in superior court, San Francisco. They were convicted. Defendant Brown was a notary public, and the affiant, one Isabella Clark, was a patient in the almshouse of the city and county of San Francisco.

These were actions brought by the appellant to recover on fire insurance policies issued by the respondents, who set up as a defense that the plaintiff had insured his premises in more than one company without consent.

This was an attachment sued out by the plaintiffs against the defendant upon an alleged indebtedness.

<p>Adverse Possession—Parol Evidence.—A Defendant in an Action of Ejectment, who had been for some twenty years in continued adverse possession of a strip of land adjoining his lot, successfully pleaded the statute of limitations against one who held the paper title to said strip; the defendant being permitted to prove by parol the continued occupation of the land in controversy by himself and the grantors of his lot.</p>

These were actions brought by the appellant to recover on certain fire insurance policies issued by the respondents. The respondents set up as a defense that the plaintiff had, in violation of the terms of his policies, insured his premises in more than one company, without consent.

<p>Railroad — Contributory Negligence in Sleeping on Track.— When one goes upon a railroad, and lies down and goes to sleep in such a position as to be injured by a passing train, and is unseen by the officers in charge of the train, although they exercised ordinary care and diligence, held, that the railroad company is not liable.</p>

<p>Appeal—Corporation as Surety—Constitutionality of Statute.— Under article 4, section 25, of the constitution of California, the act of legislature of March 12, 1885, is void, in so far as it attempts to authorize the acceptance of a corporation as sole and sufficient surety in an undertaking on appeal.</p>

Action on an undertaking under section 945, Code of Civil Procedure, to recover interest on a judgment. Judgment for defendants. Plaintiff appealed. The facts are stated in the case with the same title (No. 9121) : 71 Cal. 295, 12 Pac. 167.

The court below adopted findings of the jury, and made findings of its own, to the following effect: That plaintiff is the owner of all the water rising and flowing in that canyon, in the county of Los Angeles, known as the “Kewen Mill” or “Lake Vineyard Canyon,” as alleged in the complaint, and of the right to use and appropriate the same, except that portion thereof belonging to the defendants; and, further, is the owner of the dams, ditches, reservoirs, and pipes that…

<p>APPEAL from Superior Court, City and County of San Francisco.</p>

On habeas corpus from Superior Court, City and County of San Francisco. This was a petition for a writ of habeas corpus filed by B. S. Bernard. The petitioner had been placed under arrest by an order of the superior court of the city and county of San Francisco, issued on an affidavit made .by one Borowsky, plaintiff in an action on a contract pending in that court against the petitioner.

<p>Railroads—Contributory Negligence.—Where, on the Trial of an action for damages against a railroad company brought for the death of a train conductor in defendant’s employ, it appears that such conductor was in absolute control of a long freight train; that there were three brakemen who were under him, and whose positions, respectively, were on the front, middle and rear of the train; that the middle brakeman, when the train was leaving the last station at which it stopped before the accident, was about to go to his position, when he was stopped by the conductor to assist him in cheeking waybills, and remained in the baggage-ear after such checking was finished, and until the accident happened, there is evidence of negligence in the conductor; but the verdict for plaintiff may be sustained, where the instructions of the judge are clear, on the theory that the jury considered that the negligence of the conductor did not contribute proximately to produce the accident.</p> <p>Trial—General or Special Verdict—Omission to Make Special Findings.—When, on the trial of an action for damages, the jury are instructed that they may return either a general or a special verdict, but, if a general verdict is returned, they must also make written findings on the particular findings of fact submitted to them in writing, and the jury return a general verdict for the plaintiff, without passing on the special facts submitted, which is received and entered by the court without objection by counsel, the defendant cannot object to the verdict, on appeal, as irregular, as the reception and entry of the verdict by the court amounted to a waiver of the request for the special findings.1</p>

<p>Waters—Carnal—Sacramento and American Rivers—Act of 1885—Liability of State.—The California act of March 12, 1885 (Cal. Stats. 1885, p. 107), authorizing suits to be brought against the state for damages caused by the destruction of property from the cutting of a canal by order of the levee commissioners, for the purpose of diverting the waters of the American river into the Sacramento river, by virtue of the California act of April 9, 1862, had merely the effect of submitting the state- to the jurisdiction of the courts, and did not create -any new ground of liability against the state.</p> <p>Waters — Changing Stream — Eminent Domain.—Under the language of the California constitution, as it existed prior to the adoption of the new constitution of 1879, if, in pursuance of an act of the legislature, the channel of a river be turned or straightened where it empties into another river, so that the land on the opposite side of the river is destroyed or injured, the damage thus sustained is not a taking of the land for public use; following Green v. Swift, 47 Cal. 536.</p>

Mortgage foreclosure. A motion to dismiss the appeal was made upon a certificate, in the form required by rule 4 of the court. It was not contended that the certificate was insufficient. The only opposition of appellant wan to the imposition of damages.

<p>Prohibition to restrain superior court from trying a case on appeal fiom justice’s court:</p>

This is an action in replevin, brought by B. F. Caswell, appellant, as a pledge-holder of certain personal property, against defendant, who took the said property as sheriff under two writs of attachment. The property belonged to a corporation named the Bear Creek Lumber Company, which turned it over, by way of pledge, to plaintiff, for the benefit of all its creditors except mortgage creditors.

Motion to stay execution pending appeal. The “undertaking” referred to was one for three hundred dollars, under section 941, Code of Civil Procedure.

<p>Witness—Husband and Wife.— In an Action for the Recovery of Personal Property, the admission of the testimony of plaintiff’s wife against him, without his consent, is ground for reversal, under the Code of Civil Procedure, section 1881.</p>

This action was brought to recover the value of certain silverware deposited by the plaintiff with defendant in the year 1872, at his store in San Francisco, for her own personal accommodation, and without any reward to be paid therefor.

On September 14, 1881, the defendant, Poole, was United States marshal for the district of California. Upon that day, under an execution duly issued out of the circuit court of the United States for the 'district of California, on a judgment therein in favor of the Wallamet Falls Canal & Lock Company, and against one Jonathan Kittredge, he levied upon, and thereafter sold, as the property of said Kittredge, four iron safes.

The record shows that this was an action to recover a street assessment; that it accrued November 6, 1877; that the action was commenced October 25, 1879; that the summons was issued October 6, 1880; that the summons has not been served; and that the plaintiff did nothing between the date of issu- anee of the summons till the motion to dismiss was made.

This is an appeal by L. A. Sanderson, one of the executors of Robert A. Sanderson, from an order made upon the settlement of his accounts, requiring him to charge himself with five hundred dollars currency at its face value, which he had sold for gold coin, the court refusing to approve the sale, and to charge himself with the amount of a note and mortgage of one Braly, which he failed to collect.

<p>New Trial—Sufficiency of Evidence—Discretion.—A motion for a new trial, made on the ground of the insufficiency of the evidence to sustain the decision and judgment, is addressed to the sound discretion of the court, and an order on such a motion granting a new trial will not be reversed unless there has been a manifest abuse of that discretion.</p>

Action for the value of certain services alleged to have been rendered by plaintiff in making certain plans for defendant. The complaint shows that the hoard of supervisors of Los Angeles county made an order to the effect that the board would receive plans and specifications for a jail and appurtenant buildings, the board reserving the right to reject any and all plans and specifications.

<p>Appeal.—Where the Evidence is Conflicting, the findings of the trial court will he upheld on appeal.</p>

<p>Trusts—Coupled With an Interest—Conveyance by Trustee.—A transfer of all his interest by one who had advanced money to pay the state’s charges for a deed to salt marsh and tide lands, and who, as security for the loan, had taken a conveyance to himself of the land in trust to reconvey upon payment, and with power, upon default, to sell after notice by advertisement, is valid as a conveyance of his equitable interest, although made without such notice, and is not in contravention of Civil Code of California, section 870, providing that, “where a trust in relation to real property is expressed in the instrument creating the estate, every transfer or other act of the trustee in contravention of the trust is absolutely void.”</p> <p>Quieting Title.—A Bill to Quiet Title to an Undivided Interest in Land will not Lie, as against the grantee of one who has advanced money to clear the property, and taken a deed in the nature of a mortgage as a security for the loan, without payment or tender of the proportionate part of the money loaned.</p> <p>Trial-—Reception of Evidence—Ruling on.—It is error for the court, in making up its findings, to consider a deposition which was objected to when offered, and with respect to which objection the court did not decide at the time, but reserved its ruling.</p> <p>Trial — Ruling on Evidence Reserved.— Where testimony is objected to when offered, the party objecting has a right to have a ruling upon the point; and where the ruling is reserved, and the court, when making up its finding, wrongly considers the testimony, the error is not cured by tendering the objecting party a ruling upon the matter, when the statement on motion for new trial is presented for settlement.</p>

In 1884, some time between June 7th, at which date the parties were married, and September 19th, Presentación B. De Haley, respondent, commenced suit in the superior court of Los Angeles county against her husband, Salisbury Haley, appellant, for divorce.

<p>Deed—Consideration—Presumptions.—Where the Evidence was Clear and unequivocal that a deed was made on or within a day or two of October 15, 1883, and there was no evidence to show that the property conveyed had at the time a market value in excess of the amount paid, and there was no evidence of fraud, held, that a finding of fact to the contrary, based upon presumptions, could not be sustained.</p>

Suit by John Grant, respondent, to quiet title in himself to a tract of land, against the administratrix and children of Louis Lamori, deceased. The plaintiff claimed title under a deed to him from Francisca Urquidez de Lamori, the widow of Louis, and a deed made to her by her husband in his lifetime. The defendant and appellant Mrs. Plummer claimed title as one of the heirs at law of Louis Lamori.

<p>Divorce—Joinder of Parties and Causes of Action—Fraudulent Conveyance.—With a suit for divorce, plaintiff also joined an action for the division of community property, uniting Ketehum, Simpson, and the Bank of Watsonville as defendants. The complaint alleged that, during the coverture of plaintiff and defendant Cummings, the latter acquired, by the joint efforts of himself and wife, a quantity of real estate, which was community property, and part of which, without the knowledge or consent of plaintiff, he attempted to convey to defendant Ketehum; that this was done with the purpose and intent on the part of both parties to the conveyance to defraud plaintiff of her rights in the property; that the conveyance was without consideration; that the Bank of Watsonville claims some interest in the property by reason of a mortgage thereon, given by Ketehum, but that the mortgage was taken with knowledge of the fraud of the above-named defendants, and for the purpose of assisting in carrying it out; that said Simpson claims an interest in the land, but that his interest or claim is subordinate to plaintiff’s interest therein. Defendants Ketehum and the Bank of Watsonville demurred, on the grounds (1) that several causes of action were improperly united; (2) that there was a misjoinder of parties defendant. Held, that the demurrers should have been sustained.</p> <p>Husband and Wife—Action Between—Fraudulent Conveyance. An action to set aside the conveyance of community property made by a husband, on the ground of fraud, cannot be maintained by the wife while the marriage bond exists.</p>

This was an action to obtain an order to sell certain property under a trust deed.

<p>APPEAL from Superior Court, San Francisco.</p>

Action by the people, in the nature of a quo warranto, against the defendants, for claiming the so-called reclamation district No. 366 to be a legal district. The defendants, prior to the suit, had procured a district known as district No. 366 to be carved out of and set off from district No. 3, which latter was organized under the act of March 28, 1868.

<p>Appeal—Order Granting New Trial—Intendment.—On appeal from an order granting a new trial, made by a judge other than the one who presided at the trial of the cause, on the ground that the evidence was not sufficient to support one of the findings of fact, every intendment prevails in favor of the correctness of such order, and such intendment must be overcome by an affirmative showing of error, and an abuse of that sound legal discretion which the lower court was called upon to exercise in relation to the matter, in order to justify a reversal of such order by the appellate court.</p>

<p>APPEAL from Superior Court, Plumas County; G. G. Clough, Judge.</p>

<p>APPEAL from Superior Court, San Joaquin County; J. G. Swinnerton, Judge.</p>

<p>APPEAL from Superior Court, Sacramento County; T. B. McFarland, Judge.</p>

Marsteller, Judge. This is an action brought by A. E. Ross, plaintiff, against Joseph Williams, Michael Coffee, and D. M. Gloster, defendants, to reform certain conveyances, and to recover from defendant Williams the possession of the land put in by such reformation, with damages for its detention.

Proceedings for the disbarment of E. G-. Knapp, attorney at law.

<p>Homestead — Mortgage — Foreclosure — Presentment of Claim Against Decedent.—Under Code of Civil Procedure, section 1475, providing that claims secured by liens or encumbrances “on the homestead” must be presented and allowed as other claims against the estate, a deed absolute, intended as a mortgage, executed by a husband and wife upon the wife’s separate property, which had been declared a homestead, to secure the debt of the husband, cannot be foreclosed after the death of the husband, no claim having been presented against the estate.</p> <p>Homestead — Foreclosure of Mortgage — Estate of Decedent.—■ The provision of Code of Civil Procedure, section 1500, that an action, may be brought to enforce a mortgage or lien against the property of a deceased person where all recourse against any other property of the estate is expressly waived in the complaint, has no application' to a mortgage upon a homestead, whether a probate homestead or one selected and recorded before the death of decedent.</p> <p>Homestead—Mortgage—Failure to Present Claim to Administrator.—Where the homestead, upon which the foreclosure of a mortgage is sought after the death of one of the mortgagors, has been released from the lien of the mortgage by the failure of the mortgagee to present his claim against the estate within the time limited for that purpose, the foreclosure proceedings cannot be sustained on the ground of an abandonment by the attempt of the survivor to get a homestead on other property after the expiration of the time for t'he presentation of claims.</p> <p>Homestead.—By Civil Code, Section 1243, a Homestead can be Abandoned only by a declaration of abandonment or a grant thereof; and the execution of a deed of the homestead absolute in form, but intended as a mortgage, is not an abandonment.</p> <p>Homestead—Enforcement of Mortgage for Excess.—Where a homestead has been released from the lien of a mortgage by the failure of the mortgagee to present his claim against the estate of one of the deceased mortgagors, if the right to enforce it as to any excess above five thousand dollars remains, the burden of proof is upon the mortgagee to show the existence of such excess.</p>

<p>APPEAL from Superior Court, City and County of San Francisco; J. F. Sullivan, Judge.</p>

<p>Homestead—Residence at Time of Filing Declaration.—A married woman owned two houses and a lot, and, while residing in one of the houses, prepared a declaration of homestead, and went into another county to visit for four months. Her husband, during her absence, occupied lodgings in a house not on the property. While she was away, the declaration of homestead was filed. Defendant obtained judgment against the plaintiffs, and levied on a portion of the lot, and sold it. Held, in an action by the husband and wife to quiet their title to the lot, that, as the claimants were not residing on the lot when the declaration was filed, it was not valid.1</p>

Jones, Judge. This was an information against Cornelius Kelleher for an assault with intent to commit rape on the person of Kate Halpin.

This is a proceeding against one Ollie Hutchings for a misdemeanor.

<p>Appeal—Questions Decided on Former Appeal.—The result of a former appeal in a suit involving the title to land claimed through a United States patent to a railroad company, where the judgment was reversed because the court below rejected evidence to the effect that, at the time the grant from Congress to the railroad company took effect, the land was within the limits of a Mexican grant then sub judice, is that if, at the time, the land was within the limits of a Mexican grant then sub judice, the patent was void, and could be attacked collaterally, and the decision, never having been appealed from, is not now subject to review.</p> <p>Public Lands—Patents—Grant Sub Judice.—The Mexican Government granted a certain described tract of land, known as “Las Poeitas,” in 1839, which afterward became a part of the state of California, “containing in all two square leagues.” A survey of it was made by the surveyor general, which showed that ten leagues were included within the description. This survey was set aside by the Secretary of the Interior, on the ground that it contained more land than was called for in the grant, and a new survey was made, and approved by the Secretary of the Interior in 1871, and a patent for the two leagues issued upon this last survey in 1872. Held, that the grant was sub judiee until the final survey was approved by the Secretary of the Interior, and a title to land contained within the exterior limits of the Mexican grant, claimed through a United States patent to a railroad company in 1862, was void.</p> <p>Public Lands—Conflicting Titles—Opinion of Commissioner.— The Mexican Government granted a certain described tract of land, which afterward became a part of the state of California, “containing in all two leagues,” and it actually contained ten leagues. The survey of the two leagues was made, and approved by the Secretary of the Interior in 1871, and a patent issued in 1872. Upon an action in ejectment by a person who claimed title to land within the limits of the grant, through a patent from Congress to a railroad company in 1862, held, that the defendant was not affected by opinions of the commissioner and the Secretary of the Interior, in proceedings in the land office to which he was not a party, to the effect that a preliminary survey made in 1854, but never approved by the Secretary of the Interior, established the exterior limits of the Mexican grant.</p>

D. Freer, Judge. Action by C. E. Farnum against Philip Hefner, to recover the value of certain wheat and hay. There was a trial by the court, and judgment was given for the plaintiff. The defendant appeals.

<p>Original proceeding by petition for mandamus.</p>

Freer, Judge. Albert Allen, an insolvent, made his application under the insolvent law for a homestead. The court ordered the property claimed set apart as a homestead, from which order the assignee appealed.

S. Gregory, Judge. Juana Corrillo de Mallagh brought this action against Isabel Hoco de Mallagh and Edna Mallagh, the widow and infant child of her son, David Mallagh, to establish a trust in plaintiff’s favor of certain land of which said David Mallagh died seised.

<p>Appeal—Defects not Apparent on the Record.—On appeal from an order of court granting a new trial, where no briefs are presented, and there is nothing to show upon what grounds the court granted the motion, the order will be affirmed.</p>

M. Walling, Judge. The petition of William Scott and Raphael Solari against William P. Sowden, justice of the peace, for a writ of mandate to compel the suspension of certain proceedings in respondent’s court, and compel him to certify the same to the superior court, was denied, and plaintiffs appealed.

<p>APPEAL from Superior Court, Yolo County; C. H. Garoutte, Judge.</p> <p>Information against Arthur O’Leary for practicing medicine without a certificate. Defendant was convicted, and appeals.</p>

Application to disbar. This was an application to disbar W. H. L. Barnes, upon accusations preferred by James L. Crittenden, complainant.

<p>Appeal—Frivolous.—Where the Finding in Ejectment is that defendant did not “wrongfully or unlawfully enter upon or oust plaintiff” from the possession of the premises, an appeal on the ground that there was no finding upon the issue as to ouster is frivolous.</p>

Freer, Judge. W. R. Felter, one of the creditors of G. H. Longnecker, an insolvent debtor, filed in the superior court an opposition to the insolvent’s discharge, which opposition was demurred to. Felter’s attorney confessed the demurrer, and fifteen days were allowed in which to amend the opposition, but no amended opposition was filed within the time granted, and a default was entered, and the insolvent discharged.

Petition for writ of habeas corpus. Petitioner, Maggie McDonald, was intrusted by another with several thousand dollars to purchase mining stock for her. Petitioner received the money to invest on account of such person, and so agreed to invest same. On demand for delivery of the stock, the petitioner refused, and afterward sold the stock for which judgment was given against her.

F. Sullivan, Judge. Code of Civil Procedure of California, section 648, provides “that no particular form of exceptions is required; but when the exception is to the verdict or decision upon the ground of the insufficiency of the evidence to justify it, ... . the objection must be stated with so much of the evidence .... as is necessary to explain it, and no more.

<p>Vendor and Vendee—Delivery of Deed.—A Mortgagor Agreed in writing to execute a deed to the mortgagee, and leave it in escrow, to be delivered upon default by him in paying an agreed sum less than the amount due, provided the mortgagee gave a receipt in full. The deed was accordingly left as an escrow. Default was made, but, before the mortgagee accepted the deed, the mortgagor demanded it back, and conveyed to another. Held that, as the mortgagee had not signed the agreement, and therefore could never have been compelled to accept the deed, the mortgagor was at liberty to withdraw it at any time before it was accepted; nor did the contract become an executed one from the mere fact that the mortgagee forbore suit upon the mortgage until it was barred by the statute of limitations.</p> <p>Mortgage.—A Deed Left by a Mortgagor as an Escrow, to be delivered upon default in payment by him of a sum fixed upon in satisfaction of all indebtedness, does not become operative until default, and creates no lien on the land.</p>

E. Spencer, Judge. Action by C. H. Morgans against William T. Adel to recover money due on contract, under the following state of facts.

Finn, Judge. Action by George Pardy against Charles Montgomery, George S. Montgomery, John F. Geary and Isaac Barker. On motion of defendants the action was dismissed for want of prosecution, and plaintiff appealed.

The plaintiff, Thomas Wallace, alleges that on or about the eighth day of March, 1879, at San Francisco, the defendant, William S. Hopkins, received fourteen hundred and fifty dollars from the sale of stock in the “Niagara G. & S. Mg. Co.,” to be paid to and for the use of the plaintiff; that the defendant, although often requested, has not paid any part thereof to the plaintiff; and judgment is asked for that sum, with interest from that day.

Hamilton, Judge. Action by John H. Wise, administrator of Tully R. Wise, deceased, against J. T. Hogan, administrator of Edmond Hogan, deceased, to recover for legal services rendered by-plaintiff’s intestate for defendant’s intestate. Judgment for defendant on demurrer, and plaintiff appealed.